MAGANA & ELZERS
[2019] FCCA 3606
•12 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAGANA & ELZERS | [2019] FCCA 3606 |
| Catchwords: FAMILY LAW – Parenting – competing residence applications – 8 year old child – child always been in mother’s primary care – change of residence – parties live approximately 4 hours drive apart – mother’s mental health – parents capacity – unacceptable risk. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 61F, 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3), 67Z |
| Cases cited: A v A (1998) FLC 92-800 Mazorski & Albright (2007) 37 Fam LR 518 MRR v GR [2010] HCA 4 Waterford & Waterford [2013] FamCA 33 |
| Applicant: | MR MAGANA |
| Respondent: | MS ELZERS |
| File Number: | MLC 4893 of 2018 |
| Judgment of: | Judge Harland |
| Hearing dates: | 28, 29 and 30 October 2019 |
| Date of Last Submission: | 30 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 12 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Arnold of Counsel |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Ms Wiener of Counsel |
| Solicitors for the Respondent: | Hartleys Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Bowen of Counsel |
| Solicitors for the Independent Children's Lawyer: | Perisic Lawyers |
ORDERS
That all previous parenting orders be discharged.
That the parties have equal shared parental responsibility of X born … 2011 (“X”).
That X live with the father commencing on 12 December 2019.
Mother’s time from judgment delivery to the commencement of term 1 2020
That X spend time and communicate with the mother for the period from judgment delivery until the commencement of term 1 2020 as follows:
(a)Provided that the mother stays in the City O area:
(i)From 3pm Christmas Day 2019 until 3pm Boxing Day 2019;
(ii)From 3pm on 3 January 2020 until 3pm on 4 January 2020; and
(iii)3pm on 17 January 2020 until 3pm on 19 January 2020.
With all handovers to take place at the City O Police Station.
Mother’s time if she remains living in Town P
In the event that the mother remains living in Town P:
(a)On a four week cycle:
(i)On the first weekend of the cycle from 6pm Friday until 3pm Sunday with such time to occur within one hour travel of City O;
(ii)On the third weekend of the cycle from 6pm Friday until 3pm Sunday with such time to occur in the Town P area;
(b)On the child's birthday by telephone or FaceTime at 6.30pm in the event that the mother does not wish to travel to City O or if the mother travels to City O for time from the conclusion of school or 3.30pm until 5.30pm on a school day and from 10am until 2pm on a non-school day;
(c)From 3pm Christmas Eve until 3pm Boxing Day in the year 2020 and each alternate year thereafter;
(d)From 3pm Boxing Day until 3pm 28 December in the year 2021 and each alternate year thereafter;
(e)By telephone or FaceTime each Wednesday and each alternate Sunday at 6.30pm;
(f)Such further and other times as agreed between the parties in writing.
Mother’s time if she relocates closer to City O
In the event that the mother relocates closer to City O:
(a)Each alternate weekend from 5pm Friday until the commencement of school Monday or in the event of a non-school day 5pm Monday;
(b)Each Wednesday from the conclusion of school or 3.30pm in the event of a non-school day until 7.30pm;
(c)By telephone or FaceTime each alternate Sunday at 6.30pm;
(d)On the child's birthday from the conclusion of school or 3.30pm until 5.30pm on a school day and from 10am until 2pm on a non-school day;
(e)From 3pm Christmas Eve until 3pm Christmas Day in the year 2020 and each alternate year thereafter;
(f)From 3pm Christmas Day until 3pm Boxing Day in the year 2021 and each alternate year thereafter;
(g)Such further and other times as agreed between the parties in writing.
Mother’s time during school holidays and other special days
That X spend time and communicate with the mother as follows:
(a)For one half of the school term holidays commencing 2020 by agreement and failing agreement from 5pm on the first Friday of the holidays until 5pm on the middle Saturday;
(b)For one half of the long summer school holiday period commencing the 2020/2021 summer school holiday period by agreement and failing agreement on a week about basis from 5pm on the first Friday of the holidays in even numbered years and 5pm on the second Friday of the holidays in odd numbered years;
(c)From 6pm on the Friday immediately prior to Mother's Day until 3pm on Mother's Day;
(d)From 3pm Easter Sunday until 3pm Easter Monday in the year 2020 and each alternate year thereafter;
(e)From 3pm Good Friday until 3pm Easter Sunday in the year 2021 and each alternate year thereafter;
(f)Such further and other times as agreed between the parties in writing.
That in the event that the mother remains residing in the Town P area changeovers take place at the City Q Police Station, unless otherwise agreed between the parents in writing and in the event that the Mother relocates closer to City O that changeover occur at the police station closest to the half way point between the parties unless otherwise agreed in writing.
That each parent comply with all reasonable recommendations of the child's treating medical practitioners including in relation to referrals and appointments.
That each parent be authorised to obtain, at their own expense if any, copies of all school reports, newsletters, notices and photograph order forms from any school that X may attend from time to time and the parents each be at liberty to attend any school functions or events normally attended by parents, including but not limited to separate parent/teacher interviews.
That in the event that the child is spending overnight time with the mother, then the mother notify the father in the event that she is unable to care for the child overnight and offer the father first right of refusal.
That each parent be authorised to obtain information in relation to X's health and wellbeing from any treating medical practitioners and allied health professionals that X attends upon.
That each parent notify the other of any serious illness or injury to X whilst in their care and provide details of any treatment received together with the name and address of the treatment provider and location at which X is a patient.
That the parties be at liberty to provide a copy of the Family Report by Ms A dated 31 August 2019 to the following organisations:
(a)The Department of Health and Human Services, Child Protection;
(b)C Aboriginal Healing Service;
(c)Anglicare;
(d)Centacare City O, Parenting Orders Program; and
(e)EACH Suburb S, Parenting Orders Program.
That the parents engage in and complete a Parenting Orders Program and comply with reasonable recommendations of the Parenting Orders Program including in relation to referrals to services assessed as needed by the Program.
That the parents do all such acts and things necessary to obtain a referral for X to attend upon a registered Child Psychologist for generalised counselling and do all such acts and things necessary to facilitate X's attendance upon said Child Psychologist, with both parents to be included in the referral and treatment process.
That the parties be at liberty to provide X’s Child Psychologist with a copy of the Family Report by Ms A dated 31 August 2019.
That the mother be restrained from engaging X with any additional support services without the prior agreement of the father.
That each parent notify the other of their residential address and contact telephone number and notify the other within 24 hours of any change to same.
That each parent ensure that they are both listed as a Parent on the child's school enrolment forms.
That the mother provide the father with the address of any place she intends to stay with X 24 hours prior to the visit.
That the appointment of the Independent Children's Lawyer be discharged at the expiry of 30 days or the expiry of the appeal period.
IT IS NOTED that publication of this judgment under the pseudonym Magana & Elzers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4893 of 2018
| MR MAGANA |
Applicant
And
| MS ELZERS |
Respondent
REASONS FOR JUDGMENT
X is eight years old. Each of her parents want her to live with them. This is not an easy case. Both the father and the Independent Children’s Lawyer (“ICL”) urge the Court to change X’s living arrangements because of the mother’s long-term mental health issues and the consequent risk to X. The mother resists this, arguing that the father and the ICL are taking a punitive approach to her mental health issues. I reject that contention. This case is about risk.
This case is made more complicated by the fact that the parties live a considerable distance apart.
Despite my clear trial directions which only permit the parties to rely on one consolidated trial affidavit and one affidavit by any supporting witness, both parties sought to rely on all of their previous affidavits in their case outlines. After raising this with Counsel the father relied on his trial affidavit filed on 8 October 2019 and the other documents listed in his case outline. The mother relied on her trial affidavit filed on 25 September 2019 and the other documents outlined in her case outline.
The issues I am asked to determine are:
a)the parenting capacity of both parents;
b)the impact of any of the mother’s mental health issues on her parenting capacity;
c)the risk to X’s long-term emotional and psychological well-being if she remains in her mother’s care; and
d)the mother’s willingness and ability to facilitate X and the father’s relationship.
The father and the ICL’s position remained essentially unchanged at the end of the trial with both urging the Court to change X’s primary care arrangements as quickly as possible. The mother also maintained her position that she should remain X’s primary carer but offered different alternate proposals in the event that the primary position was unsuccessful, including if she moves to the City O area that there be an equal time arrangement or that X spend five nights a fortnight in her care. These propositions were raised for the first time in closing submissions and were therefore not explored with the family consultant.
For the reasons that follow I have determined that it is in X’s best interests to live with her father.
Background
The father says the parties met in City O in 2010 and ended their relationship in 2014.
The mother says they met in 2007 and had an on again, off again relationship until 2015.
X was born on … 2011.
At the time the parties separated, the mother and X lived with the maternal grandmother in Town R which is approximately a one hour drive from City O.
After the parties separated in 2014 the father spent time with X pursuant to an informal arrangement on alternate weekends. The mother moved to Melbourne with X in 2015. Despite the distance, the father continued to spend alternate weekends with X.
The father filed an initiating application in this court on 7 May 2018. The father had to seek a location order to find the mother and X when he commenced the proceedings.
In September 2017 the mother alleges that X disclosed that the father had sexually abused her. The father had not spent any time with X from September 2017 until November 2018. The father started spending time with X again in November 2018 at the City O Children’s Contact Centre. The supervisor of the father and X’s visits provided a report which is annexed to the supervisor’s affidavit. She was not required for cross-examination. The visits were positive.
The parties give very different reasons for the cessation of the father’s time. These are dealt with below.
When the father commenced these proceedings he was not seeking that X live with him. He says he decided to make an application to change X’s primary care as increasingly concerning information became available about the risk to X in the mother’s household.
Father’s Day 2017
In his trial affidavit the father says that the mother suspended his time with X after an incident on 3 September 2017 which was Father’s Day. The mother turned up at his house at 1pm, much earlier than their agreed time. The mother was agitated and demanded that the father give her money so she could return to Melbourne. She told the father her money was stolen whilst she was staying with her mother in Town R. The mother became more upset when the father told her he did not have any money. She grabbed X and left. X had been having a nap.
The mother ceased all communication. The father unsuccessfully tried to contact her in the following fortnight via phone and Facebook. He was blocked on Facebook and the mother’s phone was disconnected. The father’s family also tried to contact the mother and her family.
Sexual abuse allegations
The mother’s case is that she ceased the father’s time after X made disclosures about sexual abuse by the father. She does not refer to Father’s Day but she says she reported X’s disclosures to Sexual Offences and Child Abuse Investigation Team (“SOCIT”) at City O on 11 September 2017 so it is around the same time.
The mother says that the disclosures occurred in September 2017 when she and X were staying with her friend Ms D and her son. The mother outlines her version of events at paragraphs 22 to 49 of her trial affidavit. Those paragraphs are brief and I will set them out in full:
22. In September 2017 the Child was spending time with Ms D her and her son.
23. Ms D told me that she had walked in to one of the bedrooms of her home and found the Child and her son in the room together.
24. The Child was not wearing any pants but her son was fully clothed.
25. Ms D's son disclosed to her that he and the Child had been touching each other.
26. Ms D's son is around four years of age.
27. The Child disclosed to my best friend Ms D that the Father had been touching her from the age of three up until quite recently.
28. The Child told her that the Father had been touching her on her "bum" and her "ginie" as in what the Child refers to her bottom and vagina.
29. The Child also disclosed that it would happen when the Father was drinking and the Father frequently drinks.
30. As soon as I was made aware of the disclosures that the Child had made to Ms D and I asked the Child what had happened.
31. The Child told me that the Father had been touching her since she was three years old.
32. My whole world fell out from under me.
33. I believe that the Child and Ms D's son did not understand what it was they were doing and they were just being curious Children exploring.
34. I believe that the Child was showing Ms D's son what her Father had been doing to her.
35. I was reminded of strange occurrences that had taken place in earlier years.
36. When the Father and I were still in relationship there were incidences in which I would find the Father hovering around the Child in bed in the middle of the night.
37. There was an incident in which the Paternal Grandmother told me not to ever leave the Child alone with the Father.
38. When I asked her why she told me that the Child would be unsafe.
39. When I asked her if the harm was mental, emotional or physical she told me that the harm was physical and refused to discuss it any further.
40. I went home and confronted the Father and he lost his mind screaming and yelling at me and would not discuss it.
41. It is my understanding that he then went to the Paternal Grandmother and screamed and yelled at her.
42. As a result she would not discuss it with me again.
The paternal grandmother answers this allegation in her affidavit and says that she spoke to the mother about her concern about the number of people the mother exposes X to and raised the concern about sexual assault. She said she was talking about the potential for anyone to be a threat and mentioned the father so as not to seem focused on the mother’s family solely. She says she has never suspected the father of any misconduct. The mother did not ask her any questions. The paternal grandmother said she would have clarified any misunderstanding if the mother had asked her and did not refuse to speak to her about that. She did not tell the father about this conversation until August 2018 when she explained the context to him. She denies the father yelling at her about this. It is significant that the mother did not require her for cross-examination with respect to her conversations with the mother and the allegations of abuse. Her evidence is unchallenged.
The mother then outlines the steps she took to report the matter to the police and says that X attended the office of Victoria Police SOCIT but she says that X was too scared and did not feel safe to make the disclosures to police. When cross-examined the mother said that the officer only spent 20 minutes with X and that was not enough time to build up a rapport to make a child feel safe to talk about those things.
The mother says that she tried to get X to “open up more and give more detail but she would not.” The mother says that she “even went as far as to try using hand signals or spelling things out literally”. She says she now realises that the way she and Ms D questioned X may not have been appropriate but they were just trying to keep her safe.
The mother said she does believe that something happened to X; she believes her child. She agreed that SOCIT are experienced at interviewing children.
The father says that he had no knowledge of the sexual abuse allegations the mother made against him until the s.67Z response to his notice of risk was released. He was not contacted by any agency about this. The father expresses grave concerns about the mother’s apparent fixation on the sexual abuse allegations and focus on him. He says that the subpoenaed material showed that the mother has had several sexual partners and the mother does not appear to have considered that any of those partners could have harmed X.
The mother was cross-examined about the Region E Clinic records and denied that she had several appointments for treatment of sexually transmitted diseases because of being with several people and said it was with one person and when it happened a second time with that person she stopped seeing him. The mother denied that X refers to other people as dad and said she did not read the father’s affidavit which contains reference to X saying that her dad’s house burnt down.
Evidence of Ms D with respect to the allegations of sexual abuse
Ms D is a close friend of the mothers. In her affidavit filed 10 October 2018 she says she and the mother met in 2012 and have been particularly close since 2015 with the children referring to the mother as aunty and X referring to Ms D as aunty.
Ms D says that in early September 2017 the mother and X stayed at her home for a few days. Again, as the affidavit is brief I will set out the paragraphs with respect to the allegations of sexual abuse which appear at paragraphs 23 to 51:
23. On around the 10 September 2017 my three year old son and X were playing together in my son’s room.
24. I walked into the bedroom to check on them.
25. My son and X were both hiding under the doona together.
26. When the doona was removed I realised that X was wearing no clothes but my son was clothed.
27. I asked them what they were doing and X told me nothing.
28. I was concerned so I told X to get dressed and I took my son into my bedroom to ask what they had been doing.
29. My son told me that X had taken her clothes off and told him to touch and kiss her and that X had touched and kissed him as well.
30. I told X and my son not to do that again and it was not ok to do to anyone.
31. I agonised over what to do and how to handle the situation as I was worried about X and my son.
32. On the 11 September 2018 I had a talk with X to try to find out what happened between her and my son the day before.
33. Only X and I were in the room at the time.
34. I told X that I was not angry with her and she was not in trouble and that I just wanted to know what she and my son had been doing the day before.
35. I told her that all I wanted was for her to tell the truth and she would not get in to any trouble.
36. I asked her why she had taken her clothes off and touched and kissed my son and told him to do the same to her. X told me she did not know why.
37. I asked her if it was something she had seen on TV or something that she thought that mums and dads do and asked her if they were playing mummies and daddies and X told me no.
38. I asked X if someone had done it to her and she said yes.
39. I asked her who had done it to her and X told me my Daddy.
40. I asked X if that’s why she had done it to my son and X told me yes.
41. I asked her where her Daddy had touched her and she pointed to her Vagina and her Bottom.
42. When I asked X what her Daddy did she grabbed my handed and massaged it very roughly.
43. I asked X if she had wanted or asked her Daddy to stop and X told me she had told him to stop. X told me that her Daddy would say no and get angry with her when she told him to stop.
44. I asked X if Daddy did it to her all the time and X told me no only when he is drinking.
45. I asked X how old she was when her Daddy started doing this to her and X told me since I was three.
46. I asked X why she had not told anyone about it and X told me that she did not want to get into trouble.
47. X told me that Daddy told her that it was a secret and I would get into trouble of if told any one.
48. I told X that it was ok and that she would not get in trouble and that daddy should not have done that to her and that we were going to make sure he never did that again to her.
49. I asked X if anyone else had done that to her and of she was telling the truth, X told me no I am not lying and no just Daddy.
50. I ended the conversation with X and went and told the Mother what X had told me.
51. The Mother appeared to be very upset and was quite emotional.
Cross-examination with respect to the sexual abuse allegations
The mother was cross-examined about the incident. She said she heard Ms D yell out and she asked what happened. Ms D said she was not sure. She thinks that Ms D spoke to her son first and then may have spoken to X. The mother said X did not have her pants on when she went into the bedroom. She thought Ms D’s son was pulling up his pants. She says when she spoke to Ms D she asked what happened. Ms D said she was not sure but that something might have happened. She said that she and Ms D went outside for a cigarette and talked about it. She said she spoke to X after speaking to Ms D.
The mother was asked about the thumbs up and down signalling that the police referred to in their records. The mother says that she did this not long after it happened. She denied spelling out dad as the police records note and said that she would go through the alphabet and X would give a thumbs up when she got a letter. X then closed down and would not say anything. The mother said she was not sure when Ms D spoke to X and whether it was the same day or the next day.
She said that Ms D told her that X had been touched inappropriately. The mother said X told Ms D that her father had been doing stuff to her from when she was three to six. She said she could not remember the exact words Ms D used as it was two years ago.
The father’s Counsel suggested to the mother that she did not have any problems with the father having unsupervised time with X. The mother said she just had to go along with that but was apprehensive. The mother still feels that the sexual abuse was not investigated properly. When it was put to the mother in cross-examination that the police were of the view that the leading questions that she and Ms D had asked X had totally upset the evidence the mother said she did not realise that. The mother acknowledged that she did not know how to interview a child but that X was not going to talk to a stranger and that the police only spoke with her for 20 minutes and X was not going to open up to a stranger.
The records show the mother telling the Department of Health and Human Services (“the Department”) that X was sexually abused by her father. The mother said that X told Ms D and X used the up-and-down signals. She was not sure if X verbalised anything as she was not in the room with Ms D and then said that she did not come into the room straight away. The records referred to Ms D speaking to X through hand movements stating that X was sexually abused by her father and the mother agreed. The mother said she did ask Ms D what happened after the fact.
She also denied being fixated with SOCIT and trying to get disclosures from X in July 2018. She said she spoke to SOCIT twice. The mother denied continuing to question X about it and said she was not trying to push anything but was just advocating for her daughter.
The mother stood by her evidence that she did not think the sexual abuse allegations were investigated properly and thought that one person speaking to X for 20 minutes was not enough and she does not see why X would make it up. The mother said she is not comfortable with her proposal for the father to spend time with X but says the Court already ordered it and she was told by her lawyer. She says she encourages X to have a good time with her dad. The mother does not think that X would be the perfect child that she is if she was badly impacted by the mother’s mental health.
Ms D was also cross-examined. She said that when she walked into the bedroom both children were naked and under the doona. She said the mother was in the bathroom and came in perhaps a couple of minutes later. She then said that X was putting her singlet on and T was getting dressed. Ms D asked them what they were doing and they said they were playing a game. She said that she and the mother told the children to put their clothes on and then went about the day as normal. She then said she took T into her room and spoke to him separately. She said that X used words when she spoke to her and used the thumbs up and thumbs down to her mother. Ms D denied asking X leading questions and said that she gave X about half a dozen reasons to choose from. Her affidavit refers to putting different propositions to X.
Ms D said that there had been times when her son has been curious about his body parts which is normal but says the way that X behaved with him was different and was abnormal. She says that when X stays at her house someone is always in the room and that she stays with her mother in the same bed. When she had X in her care for respite whilst the mother was in hospital, X stayed in a room on her own and T slept with her.
It is significant that the mother’s Counsel, presumably on instructions, did not ask the father a single question about the sexual abuse allegations. Despite this, during the cross-examination of the mother it became clear that the mother still believes the father sexually abused X.
The father told the family consultant at the report interviews that he is concerned about the mother repeatedly raising this and does not believe that the mother has let the allegations go. He described them as rubbish. He has never been interviewed by police or the Department about the allegations.
The mother and Ms D’s evidence was inconsistent. I am not satisfied on the balance of probabilities that X was sexually abused and certainly not by her father. It is concerning that the mother has remained of the view that the father is responsible and does not seem to have considered the possibility that X was not abused or if someone did touch her inappropriately that it could have been someone else the mother introduced X to.
It seems unlikely that X would have articulated the abuse occurring between the ages of three and six. There could be several explanations for what Ms D is saying including that the children were exploring each other’s bodies as young children sometimes do. It could be that one of the mother’s partners abused X. Given the mother’s own childhood experiences it is understandable that the mother would be concerned that X had been abused.
What is concerning is that this has become fixated in her mind as has her belief that the father is responsible. This is in spite of the investigations. The mother also lacks insight into how arranging X to have sexual abuse counselling would be harmful to X if she has not been abused as that type of counselling typically takes place on the premise that the abuse occurred. It is not the role of those counsellors to engage in reality testing or any kind of forensic investigation.
The mother continuing to question X and trying to get this sort of counselling can cause X great psychological harm.
Family violence
The mother says that during the relationship the father was emotionally, psychologically, verbally and physically abusive. She does not provide details, makes generalised allegations and does not provide any timeframe. She says there were incidents of physical abuse and that the father threatened to kill her on many occasions and on three occasions snapped her phone in half. She says that she moved from the City O area to escape family violence. The mother’s evidence in this regard was lacking and unsatisfactory.
The subpoena records from the Region B Domestic Violence Service is exhibit 2. The record of the intake assessment on 23 August 2018 contains a number of references to the sexual abuse allegations and the mother’s claims that the father told her when she was pregnant that they had to have a son and the paternal grandmother warning her not to leave X alone with him. It also records the mother expressing fear about family violence escalating during the Court proceedings.
The mother obtained an intervention order (“IVO”) against the father after an incident where the father threatened to kill her. The father admits this incident occurred and says that it is the only time such an incident has occurred.
The father says that during a phone call with the mother in 2015 the mother demanded to come to his home with X. He says that the mother was agitated and he did not want her to travel from Melbourne to City O in that state. He says the mother continued to insist on coming and the father said to her if she came to his home he would shoot her. The father says it was a stupid thing to say and was said as a throwaway line and not as a threat. The police rang him a few days later and he told them what happened. The mother was granted an IVO against the father as a result of this incident.
The father was cross-examined about this incident and the mother’s Counsel did not put the proposition that he made other threats to her. Exhibit 1 is the Victoria Police LEAP record with respect to this incident. The police record that the father told the mother that if she came to his house he would shoot her. The mother does not believe that he would. The father lives three and half hours’ drive away from her and has no interest in coming to see her. No criminal investigation was required as the threat to kill the mother was hypothetical and the child was not in immediate danger. Police advised the mother that if the father does not want to see her or the child that she should not see him. Police applied for complaint and summons. The father’s Counsel suggested to the mother that she was not afraid of the father when he made that threat and she told the police that. She said she was not sure if he would carry through with the threat or not and that is how she felt at the time.
One threat like this is one too many and is unacceptable behaviour. However, I am not satisfied on the evidence before me that there have been other incidents of violence between the parties.
The father was not cross-examined about any other incidents.
The mother admitted that there have been two arguments with her sister where the police were called. One was when they were living together in Suburb U. The other was when her sister was staying with her for a few days in Town P. X was there. The mother says X went to the garage during the argument.
The mother became homeless at the start of 2017. The mother’s sister was not paying her share of the rent and the mother could not afford the rent on her own. She denied ever living in her car with X. She said she obtained hotel and other accommodation through emergency housing.
The Anglicare records show the mother telling them that when she was 21 she was in a relationship with Ms F and that he had stabbed her and she nearly died. She said she was not sure if there were any medical reports with respect to that incident and said that whilst the subpoenaed records do not refer to it, it was the police who charged him. Other records report the mother saying it was the father who did this.
The mother says records referring to the father being responsible for stabbing her and breaking her jaw is a mistake and that she never attributed those to the father.
She also made further allegations of family violence against the father that she had not previously raised and claimed that the father told her that he killed someone with his father and buried the body. She made no mention of this previously and it is just not credible. Rather my sense is that as she was challenged about various issues she would continue to come up with varying excuses and explanations.
The mother has refused to reveal her home address to the father. There is no reasonable basis for this. Both parents should know where the child is living while they are spending time with the other parent and I will make an order to that effect.
Other allegations against the father
The mother raised various allegations against the father. These allegations include the father drinking and his home being filthy with piles of rubbish and empty alcohol cans in the home.
The father denies drinking alcohol to excess. He says that on alternate weekends when X is not in his care he has about five cans of Jim Beam. His license was suspended about eight years ago for a drink driving offence for six months. His license was again suspended for 12 months in 2016. In relation to the drink driving offence the father says that he only started driving again when he recommenced seeing X. He says an interlock was placed on his car. He does not provide any of the interlock records. When cross-examined about this the father said he was convicted for drink driving for having a blood alcohol concentration reading of .06 and was required to have the interlock device for year. He has about five or six months left. He says the interlock device costs him about $217 a month. He says this is the second time he has been convicted of drink driving. He said the first time he was on a dirt bike and again blew .06. The father says he has learned his lesson but it is understandable that the mother continues to have concerns about his drinking.
The father says he does not drink when he has X in his care and has otherwise reduced his drinking.
The father says he used to smoke cannabis but stopped about five years ago. He says he was pulled over in 2011 by the police and cautioned for cannabis possession. The mother admits to smoking cannabis far more recently but also says she has ceased.
The father denies ever taking any other illicit substances. The father has undertaken several supervised drug screens as a result of the court orders. His screens have been negative.
The family report writer identified the father’s drinking as a concern.
The father’s time with X
After four supervised visits at the City O Children’s Contact Centre the father’s time with X progressed to unsupervised. Initially he had four alternate Saturday daytime visits and then visits on alternate weekends from 10am Saturday until 3pm Sunday. The father said that he observed that X would be tired from the travel and proposed that his time commence on Fridays rather than Saturday so that X would have a day free of travel with him. He says the mother refused this proposal.
The mother also showed inflexibility when the father proposed that given he was travelling to Melbourne on Friday, 19 July 2019 for the family report interviews that he takes X home from the interviews with him rather than the usual pickup occurring the following morning. The mother refused. When cross-examined about this she said that she asked X and X did not want to go with her father that afternoon. This is somewhat concerning that she thought it was appropriate to ask X’s view on this rather than simply agreeing and telling X about having bit of extra time with her father. The mother’s decision does not appear to be child focused. It would have saved X significant travel time.
The father was due to have X for a week in the July school holidays. The father says that X became unwell. He says that X kept saying that she thought she should be with her mother and that he somewhat reluctantly called the mother to arrange an early collection so as not to distress X any further.
What this means is that since the father’s time resumed in late 2018, the longest block period that X has spent with her father has been for a few days.
Affidavits of the paternal grandmother and paternal great grandmother
Ms G is the father’s step-grandmother. She owns the four bedroom house she and the father live in. The father has been living with her for two years. She says she has a close relationship with X from the times she stayed on alternate weeks. Up until Father’s Day 2017 she was also on friendly terms with the mother and communicated with her regularly until the mother blocked her from iPad messenger.
She says she is happy for the father and X to live with her on a short term basis until the father finds appropriate accommodation. She is also happy for his mother Ms H to stay while he makes these arrangements. She is not able to provide practical assistance in caring for X given her health. She is 82 years old.
She says the father provided all the care for X when she was with him. She has never seen him behave inappropriately towards X and says he is a good father. She was not required for cross-examination.
Ms H is the father’s mother. She used to see X regularly until she moved to Queensland in 2014 after her husband died. The father and X visited for Christmas in 2016.
She communicated regularly with X and her mother from 2014 to 2017. From September 2017 the mother blocked her attempts at communication.
Ms H says she had concerns about the mother’s care for X due to a number of comments the mother made during conversations they had. This included X being exposed to various people as the mother spoke about different people she met and taking X with her including on overnight visits. She also frequently took X with her to stay with family members such that X did not have much routine.
Ms H says that when the father and X stayed with her in 2016 the mother rang to speak to X every day, sometimes several times. If the father had missed the mother’s call she would leave several messages.
She says she is protective of all her grandchildren. She has not seen the father act inappropriately towards X.
She is in the process of starting up her own business and can work from home and remotely. She is able to go to City O at short notice and stay for a few weeks to help with X’s transition into his care.
The parties’ mental health
The father says he has never had any mental health issues.
The father said the mother had mental health issues before, during and after their relationship. He says on one occasion after X was born the mother threatened self-harm and he had to call the ambulance and police.
Psychiatric assessments of the parties
Dr J, psychiatrist, assessed both parties. His assessment of the father was unremarkable. He did not find any psychiatric diagnosis or personality dysfunction.
Dr J refers to the documents that he read which are extensive and include subpoenaed records. He refers to notes of a social worker from the Brotherhood of St Laurence who was helping the mother for two years while she was living at Suburb U. The notes expressed concerns about the mother relating to X as a friend rather than as a parent and that she placed her own needs ahead of X’s when she was experiencing emotional dysregulation. The school records noted that X was behind her age group, that in the first semester of 2018 she was absent 15 days and that the mother encourages counselling for X which appears to be inappropriate.
Dr J records that besides her boyfriend Mr K, the mother has made one female friend in the Town P area. Her best friend Ms D lives in Town R. Dr J also recorded that the mother says that X is now getting good grades in school but has confidence issues and has friends who she sees outside of school as well.
Dr J noted that for the past year the mother has been taking 10mg daily of Lexapro prescribed by her GP at Region E Clinic. The mother said the previous antidepressants made her too emotional. The mother does not want to be on medication long term.
When asked about her mental health history the mother said that she was in an abusive relationship when she was 15 and became pregnant and had her first panic attack before undergoing an abortion. She said the panic attacks continued for years. She said for two months when she was 15 or 16 she was bulimic. She believes she had a nervous breakdown after X was born but did not require psychiatric hospitalisation.
She said her mother was an excellent parent who suffered from postnatal depression and has been on Zoloft for 20 years. The mother has five full siblings and two half siblings. She said that one sister has severe anxiety like herself and both of her half-brothers too. She then said one or two of them take medication but no one has required psychiatric hospitalisation.
The mother said after the abortion she left home to live with her boyfriend and his family and says he would push and hit her. They lived together for a couple of years when she was 21. They were living in City O. She says he lost his temper and stabbed her in the chest with scissors and punctured her lung. She says she was in intensive care for a week. She returned to him for another five months and he constantly hit her and denigrated her. She says he ended the relationship. The mother believes that she has suffered from post-traumatic stress disorder (“PTSD”) from that relationship since then.
When she was 22 she was date raped in her sleep by a friend.
She lived with a man called Mr V for a year and she says that he was verbally abusive to her.
She said she met the father through a mutual friend and they had been together for three years when X was born. She says the father would tell her that she was not good enough and was upset that she did not work. The mother said she would tell him that she had PTSD and that she was seeing counsellors on and off.
The mother said she still worries about what X told her and Ms D about being touched by her father. She told Dr J when she was nine or ten that her six-year-old stepbrother would often come to her bed and touch her. She says she did not tell her mother until she was in her late 20’s. She said that her stepbrother was later charged with burning down a house with an intellectually disabled person inside. The mother distanced herself from this allegation when cross-examined.
The mother said she has tried unsuccessfully to get psychological treatment with cognitive behavioural therapy for her PTSD and had seven sessions with Ms L of M Wellbeing Centre. She now sees Ms N at no cost. Ms N is a registered play therapist but also works with adults.
Dr J diagnosed the mother with dependent personality disorder. The mother does not accept that diagnosis and says she believes she has PTSD and has been doing behavioural work with Ms N at M Wellbeing. She said it was Dr J’s opinion that cognitive behavioural therapy is not what will assist her.
He has no doubt that the mother feels supported by her therapist who also does not believe the mother’s diagnosis. She lacks the qualifications that the mother needs. He said that the therapy is very broad and that he has no doubts that she is having therapy and that it is helping her. Dialectical therapy is aimed for people with personality difficulties and where other therapies have not worked.
Dr J referred to the mother’s childhood growing up in a family with a pattern of sexual abuse and that there was a clear threat of the mother never experiencing self-agency and self-worth and that she has put up with repeated abuse as an adult so has to be cared for. She has strong feelings but weak thinking and he wondered if there was an intellectual limitation which added to her self-doubt and inexperience in the workplace. He also thought that his impression of weak thinking could be from her weak sense of self. He thought she would benefit from working part-time to give herself a sense of worth and noted that the mother would need support to contain her anxiety as she is very fearful of failing at work.
He referred to her GP’s question about borderline personality disorder and said that if it was necessary to have a label it would be dependent personality disorder. He did not think that cognitive behavioural therapy would be helpful but dialectical behaviour therapy could be beneficial. Such treatment needs to take place over many years and can be done in group sessions.
When cross-examined Dr J said that a dependent personality disorder is not a psychiatric illness but is a descriptor of someone’s personality when someone prefers to lean on someone else rather than operate independently. She is able to elicit a caring capacity from others and the concern is that the same is likely to happen for X.
Dr J said it is absolutely possible for someone to live alone and have a dependent personality disorder. Cognitive behavioural therapy will not be helpful for her because it requires a personality strength of the patient to be able to reflect dispassionately on their behaviour and be able to change it in an intellectual way and not just do what one feels. The mother very much is guided by and acts upon her feelings.
Dr J was not aware of private individuals in Victoria practising dialectical behavioural therapy and said there is a Victorian government body that specifically trains in and provides group therapy dealing with people who break off from therapy and return. He said accepting the diagnosis is not the important factor and would not be surprised that someone made a diagnosis of PTSD. It is her behaviour in past years and he would expect that if she is not dependent on X now she will be in the future as it is a general dependency. My impression is that the mother needs support emotionally and practically. That is supported from the tendered records where the mother has needed assistance with the arrangement of things.
The mother was accepted into the National Disability Insurance Scheme in 2017. Region B Access Community Health was her service provider initially but she has been transferred to the Aboriginal Healing Centre. The mother said that X is one ninth aboriginal on her paternal grandfather’s side. She said she does not expect to receive any financial advantage but wants X to enjoy her culture.
X’s school attendance
The mother annexes several of X’s school reports to her trial affidavit which show an improvement in school attendance and that X is a well-behaved and engaged student who is particularly artistic. X’s most recent school report is not included. The mother claims not to have received it as yet. It is also apparent that the school report for the first semester of 2019 is incomplete and in fact includes a repetition of the previous report. The first semester report for 2019 shows a significant improvement in X’s school attendance. The evidence is that X is increasingly expressing a reluctance about attending school. It would have been of assistance to have up to date school attendance records in the absence of the second semester report which may not have been released at the time of trial as the semester 1 report encompasses terms 1 and 2. The omission of the recent documents is significant given the fact that the mother’s case is that she has improved significantly in a number of areas in the past year but has failed to provide supporting evidence from her medical practitioners and her current supports services.
The mother also told the report writer at the family report interview that X can be reluctant to leave her to go to school.
The mother said she did not recall telling Anglicare that X suffered from separation anxiety and that that made it difficult for her to attend school regularly.
Dr J was not surprised to hear the family report writer’s observation that X worries about her mother and said that he would predict that in the future X will refuse to attend school as half or more children who engage in school refusal do so because of anxiety about a parent. He bases this concern on his reading of the mother’s social work file and also his interview with her. He said that he thought her mental health has been poor for years and will remain poor and even if she accepts help it is uncertain as to whether or not it will improve. Her mental health has been up and down for years.
The mother’s explanations for the amount of school X missed in 2017 was unsatisfactory. X was enrolled at Town P Primary School in July 2017. Exhibit 3 is the attendance records from 1 July 2017 until 30 October 2018. The records show X being absent from school on 18, 19, 20 and 21 July 2017 due to illness. She missed the whole of the following week due to “parent choice and authorised car trouble”. The following week she was late on the Monday, Tuesday and Thursday and was taken out of school early on Thursday and absent on Friday with the reason given that the mother was fixing the car and would not be back until Monday. X missed the whole of the following week and that absence was unexplained. X attended school on two non-consecutive days in the following week but was late on one day and taken home early on another. The next several weeks from late August through to September show far more absences which were unexplained than attendances. Whilst there was some improvement by late September through to October, there was several days where X was late. In November and December there were less absences but there were still many late attendances. In 2018 there was still significant periods of absences, one of which was unexplained and some of which were recorded as being due to illness. Late attendance was also still a regular feature in 2018. The records go up to 16 October 2018 and they include the period in September 2018 where X did not go to school because of the mother’s operation. This is consistent with Ms D’s evidence that the mother and X went to her house after the mother’s release from hospital to recover.
There is also a record from the wellbeing officer at the school recording that on 24 July 2018 contact was made from the Australian Childhood Foundation about whether or not counselling could be provided for X as Anglicare were not able to provide counselling at this stage but were providing counselling for the mother. The note identifies issues with the mother “being fixated on what she feels X need through counselling and pushing this agenda. Both Anglicare and ACH have said that they think this is harmful to X and believe she needs counselling support on a broader scope.” The well-being officer noted talking to X for the first time that day and that X told the well-being officer that she is deaf and has grommets that did not work and that this is why she is in grade 1 and not grade 2. There was a note of a follow-up with X on 14 August 2018 where X appeared happy at school and talked about the fun she was having playing games with her friends but when asked about things at home she sounded reluctant, not positive and shrugged her shoulders and said “hhmmm”. She did not want to talk about it when she was asked what was happening at home.
When asked about X’s poor school attendance in prep the mother said she took X to school most of the time. There was also a concerning pattern of the mother collecting X well after the end of the school day. The mother said this only happens sometimes because she had to go to appointments and then get all the way back to Suburb U. She said there was only one instance where she had not collected X by 6pm. The mother said she thought she was at an appointment. When it was put to her that the records show the mother told the Department that she was at the movies the mother said she could not recall.
The records record the mother being unwilling to place X in after-school care. The mother said she could not afford it. The mother said Anglicare paid for it once and then set up an arrangement to pay it in instalments.
When the mother’s cross examination continued the next day the mother gave different answers to her earlier evidence with respect to several topics. The mother’s Counsel suggested to her that the reason X did not go to school in 2017 was because the mother was in transient. The mother said the real reason was that she had spoken to X’s teacher and X had problems with her hearing. The mother made no mention of this the day before.
The mother’s evidence about X’s report in relation to school attendance was unconvincing. Initially she said that when she first enrolled X she and X were both unwell and then with respect to a period where X was absent for several weeks the mother said she thought that that was during school holidays.
The mother said she was not aware that the school reported X’s absences to the Department. The mother was cross-examined about the Department records. They refer to a concern about the mother being homeless but that she had temporary accommodation with her aunt. The mother said she stayed with her for around a week or a couple of days. Records show that the mother was staying in a caravan on her sister’s property but only at night to sleep. The mother said she stayed in a room at her sister’s home.
On one occasion X went to school with mould in her sandwich. The mother said that she recalls X saying something to her about that. The mother said that she made X her lunches. The teacher spotted the mould and said that X was willing to eat it if she had not seen it. The father’s Counsel suggested to the mother that it happened because X was getting up in the mornings before the mother and getting herself ready for school. The mother said that they got up at the same time and sometimes when X would go to have a shower the mother would lay down for a little while. The mother claimed that she made X sandwiches for lunch. If this is the case then it is concerning that she did not notice mould on the sandwich. It seems more likely that X was making her own lunch but in either case it indicates the mother not coping with parenting at that time.
The mother said the school records stating that the mother was heard swearing at X when school rang to see why X was not at her first day of school was mistaken.
The mother said she has asked for X’s second semester 2019 report but has not received it.
Mr K
The mother met Mr K through an online dating service. She says that she talked to him before they met and introduced him to X a couple of months later. She says she has introduced two or three other men to X previously. Counsel for the ICL expressed concern that she introduced a man who she had known for five months to a seven year old who she believed had been sexually abused. The mother said she knew him well enough to know he is very protective of children and as long as Mr K was there she was safe with his housemate there. This evidence was troubling.
The mother refers to him as a close friend and says he comes to stay the night around three nights per week. She says they have been moving things slowly and did not want to label the relationship. She says that he does not pose any risk to X or to her.
The family report writer interviewed Mr K. He stated that he stays with the mother on average three nights a week and says they are friends and not in a relationship. He said he does not help with parenting tasks but he helps the mother with housecleaning and remembering to take the rubbish out. He does not believe that she has mental health difficulties but has had a difficult life. Again, this is part of the consistent picture. It is also consistent with Dr J’s descriptions of the mother’s personality and her ability to get people to care for her.
When asked about X telling workers that Mr K is an angry man the mother said she could not recall if they raised this with her and said that everybody can yell and be grumpy and that she was not denying that that was X’s view. She says that she does not recall Anglicare raising any concerns about X’s exposure to Mr K.
Care arrangements for X whilst the mother was in hospital
The mother was in hospital from 6 September 2018 to 15 September 2018 for surgery to remove her gall bladder and repair ruptured stomach ulcers. The mother arranged for Mr K to care for X at his home. It is concerning that the mother thought it was appropriate for X to stay with Mr K and his flatmate. X then went to respite care for a few days before Ms D came down to look after her. The mother’s judgement in arranging for Mr K to care for X is what is of concern. It also would seem from this is that she does not have strong supports in place in Town P apart from professional supports. It also wonders why the mother did not arrange for her mother to look after X.
The mother’s friend Ms D says the mother called her from hospital on 10 September 2018 as she was concerned about X being in respite care whilst she was in hospital. Ms D collected X from respite on 12 September 2018 and had her in her care until 16 September 2018 when the mother was released from hospital. The mother and X then went to stay with Ms D in Town R whilst the mother recovered from her surgery.
Support services involved with the mother
Anglicare arranged respite care which X went to about once a month. Anglicare provided a variety of practical supports including food vouchers, petrol vouchers, paying for X’s swimming lessons and paying for X’s after school care.
The records indicate that the previous services involved with the mother when she was living at Suburb U had concerns that the mother’s mental health was deteriorating and that it was likely that she will remain unreliable in her ability to focus on X’s wellbeing. The mother needs further support to further prevent an increased risk of cumulative harm to X.
The mother disagrees that she told the support services that she has borderline personality disorder. The mother said the doctor has discussed that with her but she has not been diagnosed as it has not been looked into. When the father’s Counsel put to the mother that the subpoenaed records, the family report and the psychiatric report all record her reporting that she has borderline personality disorder the mother said she never said that she was diagnosed with it but said it was discussed with her doctor and that the only thing she has been diagnosed with is PTSD and short-term memory loss. She says one time she told the Anglicare worker that her doctor discussed borderline personality disorder with her and that it was possible that she had it. The mother agreed that she told them that she was open to being formally assessed.
Anglicare tried to arrange a number of assessments with a psychiatrist for the mother and made at least two appointments which the mother did not attend. The mother said she did not tell the workers that several members of her family had borderline personality disorder but did say that there are mental health issues in the family. The mother says she told the worker that she may have been sexually abused by her father but she was not sure as she was only a little girl when her mother left. She agreed that she said her stepfather bashed her when she was 15. The mother disagreed that she said that she does not get along with her mother and says that she told them that they have a decent relationship.
The worker recorded that the mother relies on X beyond X’s capacity to manage at her age. The mother said she cannot recall saying that and says that X gives her a hug when she cries but does not look after her as she looks after herself. The records also refer to the mother saying that the father threw her against the doorjamb and bruised her side and ribs. The mother said that was correct. The difficulty with this is that it is not in the mother’s affidavit and significantly was not put to the father in cross-examination. It is also of concern that Anglicare workers refer to providing assistance and intervention to help the mother’s parenting but she struggled to implement them and referred to the mother often blaming X for her parenting problems.
The records also refer to the problems Anglicare workers had communicating with the mother, the mother not returning calls and not being at home for scheduled home visits and appointments. The mother said that she did not return the calls because she did not get them or because she lived in a blackspot and had to change provider. The mother tended to give various excuses. When again it was suggested to the mother that the records show Anglicare is continuing to have trouble getting in contact with her and having trouble giving support to her and X the mother said again that she lived in a blackspot.
The mother said that they did not tell her that they were concerned that there was an ongoing risk with respect to the mother’s capacity to meet X’s physical, emotional and psychological needs.
It was put to the mother that Anglicare made referrals to two parenting groups but the mother did not follow through. The mother said she had car issues for a long time. The mother agreed that they went out of their way to assist her but said that she could not control her car. She did acknowledge previously getting assistance with infringements for her car and acknowledged receiving food stamps and says she continues to receive them from time to time.
The mother denied that when X was required to take a tablet daily for asthma that she often forgot to remind X to take them and says that X took them most of the time. She agrees that they had to implement strategies to help her create reminders to make sure that X took a tablet but said that in the end X did not need them. The mother denied that it was stopped because X was not taking the medicine all of the time. The mother said she was taking enough of it to see if it worked or not.
The mother said she does not know why they recorded that they were concerned that the mother was trying to get disclosures from X. The mother said she only said that if X needed to talk to anybody that is okay and that she was not trying to get disclosures from her but wants what is best for X as her parent. She agreed that she did restrict X from having play dates and sleepovers for a short period in case she did something to another child. The records indicate this being in July 2018 many months after the disclosure. The mother said that she still has fears and does not want anything to happen to another child because her child is confused. In answer to the concern of the workers that the mother was sharing her concerns with X in age-appropriate detail, the mother said she just told X that she did not want what happened between her and T to happen again. She denies going into further detail. The mother said she cannot remember if X told her that she is confused about why she could not have play dates and sleepovers. The mother said she now goes on play dates but not sleepovers. The concern about the mother trying to get X to make disclosures is raised a number of times. The mother has limited insight about this and other concerns about her parenting and general functioning.
The records also refer to having problems getting a mental health care plan for the mother. In July 2018 the mother continued to cancel and avoid appointments. The mother denied this and said she been trying to get help.
The mother disagreed with the worker’s opinion that the mother continued to place blame on X for how she was feeling and that X shows no respect. The mother said that sometimes children showed little or no respect but she does not blame her for everything, she is a child.
With respect to the records reflecting that the mother disengaged with Region B Centre Against Sexual Assault after the first appointment the mother said that sometimes she missed an appointment because she double booked and would not remember. She then says it was not an easy situation to be in and thought that she went more than once. She said she did not remember not following through with parenting group referrals and said she may have been given petrol vouchers to help support her engagement.
The mother says they never raised concerns with her about environmental neglect and said she did not get angry and scream at the workers. She does not recall them raising concerns about Mr K being controlling of her.
The mother said they may have needed to chase her for forms for X to see a psychologist and nurse at school.
In answer to the suggestion that X has told the workers that X feels that she needs to care for her mother she said that sometimes X comforts her and she denied saying that she cannot cope when X is crying and sends her to her room. She said she had told X to go and have a timeout and then come back. She said she was not doing this to make X deal with her emotions on her own. She said that X did not want to talk to her and that she told X that when she did to come back out. She agreed that she also suggested that X call her grandmother. But the mother says she does not remember telling X to call her grandmother when she was supported generally.
The mother agreed that Anglicare found out that when the mother was in hospital Mr K was caring for X. The mother said that was because she did not have anyone else. When they went to collect X from Mr K’s home they recorded that X was at the front door with a backpack and sandwich and that Mr K was in a wheelchair now. They were concerned that he did not have capacity to care for X. The mother said his arms were not disabled his legs were. She said the sheet that they have up blocking the view of the kitchen is to keep in heat. The mother said she has met his flatmate Mr W.
The mother said she did not recall telling Ms Y, a support worker, that X had been sexually abused by her father 12 months previously when Ms Y was talking to her about the father having contact with X.
The mother said she did not tell the father she was moving because she was homeless at the time and she did not know where she was moving and said she did not put his name on the school enrolment form as the primary contact because she was the only one close enough to help X. The mother did not show an appreciation of keeping the father informed. The family report writer refers to Anglicare records providing the mother with respite care one weekend a month to provide the mother with a break and also to provide social connections for X.
When it was suggested to the mother that she has difficulty maintaining engagement the mother said it is difficult to talk about (this seems to be with respect to X engaging in counselling).
The mother disputed there being any basis for the family report writer’s and Anglicare’s concern about X having to parent the mother. The mother said she does all the cooking and cleaning. The concern for X’s welfare is really from an emotional and psychological perspective.
The mother claims that she was not able to develop a rapport with support services in City O.
Anglicare closed their file on 10 October 2018 referring the mother and X to C Aboriginal Healing Service. Their closure notes refer to the ongoing concerns for X in the mother’s care. They noted that the mother had not shown any increase in capacity around understanding X’s developmental needs and the ability to follow through with recommendations. They referred to the mother having emotional difficulties in blaming X for her emotions and fixating on the sexual abuse disclosure and also had a pattern of not engaging with support services.
Financial support
Both parties have taken a somewhat lax approach to the issue of child support with neither having applied for a child support assessment in the years since they separated despite both being in a position to do so.
Initially the mother said that Centrelink gave an exemption from seeking child support because the father would not sign a paper but then said that the fact that the father did not do it himself discouraged her and she could not be bothered to do something that he should have done. This does not reflect well on either of them.
The father’s proposal and parenting capacity
The father is unproven as being a primary carer for X and has not had care of X for any significant block periods of time. The father will need to have supports in place and X will need supports to adjust to what is a significant change in living arrangements for her.
The family consultant described the father as having a simplistic view of how his proposals would work and how co-parenting with the mother would work. The father remained focused on X and did not make disparaging comments about the mother and did not show emotional inability.
She considered him to be child focused. He acknowledged the difficulties for X under his care but thought the risks were greater if she remained in her mother’s care. He had a variety of proposals depending on different possible outcomes.
He said the six hour travel for one overnight was tiring for X. He wants X to continue to see her mother but is worried for her mother’s mental health. He is fearful that after the proceedings the mother will return to smoking cannabis and that her mental health will continue to be unstable because she does not stick with treatment. He also referred to concerns about the school absences and X being placed with carers rather than him.
I have some concerns that the father underestimates the challenges. He has not made enquiries of local counselling agencies. He has made enquiries of the local school and there is a spot there for X but he does not know if they have a school counsellor. X is able to start there straight away. He is not sure how X is progressing at Town P Primary School as he is still waiting for her school reports.
The father was due to have X for a week in July 2019. He arranged to return X early at her request. In cross-examination the father denied that this was because she was missing her mother. He said X was violently ill and in tears. She told him that she wanted to go home because she was missing her cats. The father says he offered to buy her cats. That shows some insensitivity and lack of insight. X may not have felt comfortable telling him that she wanted her mother. It was natural for X to want to be cared for at home when unwell given the limited periods she has spent with her father.
The father says that moving to Town P is not feasible for him as he does not have any family or connections there. Both have family in the City O area and X has friends in that area as well.
The father disagreed with the mother’s comment that there are fewer professional supports available in City O and says it is bigger than Town P.
The father says he will be able to rearrange his work hours to start at 8.30am and finish at 3.20pm so that he will be able to take X to school and collect her in the afternoons. He said that if his current employer did not allow him to do so, that he would resign and find a job that works around X’s needs. The school is a 10 minute walk or 2 minute drive from his home.
The father says that when X was sick he was not sure at what age a child should switch to adult Panadol from children’s Panadol so he asked the mother. He denied telling the mother he would just get any Panadol.
The father lives with his grandmother in a four bedroom house. X has her own room which is decorated for her. He says his mother will come down from Queensland to help with X initially.
The mother agreed that her proposal is for the father to see X on alternate weekends and half school holidays. She said she is not sure about his parenting as she is not there. She believes he is capable of parenting on weekends but is not sure about the holidays but she proposed that it is because his grandmother is there.
The father’s position is that he would support the mother having more time with X if she moved to the City O area provided she is connected with the mental health services and is more stable.
The mother’s parenting capacity
The mother says she has greatly improved in a number of areas and she feels calmer in herself and is not letting emotions get the better of her. She has been good with appointments since keeping a diary. The mother does not feel that her mental health has impacted on X.
The mother downplayed the separation anxiety and she referred to X having it and said it was some days, not all the time. She also said that she was the same with her mother and it was not because of anything her mother did. She said she does tell X she will miss her when she spends time with her father and said that she has cried twice at drop offs because X was upset.
There is no doubt that the mother has experienced several traumas. The mother was in a violent relationship when she was younger and was stabbed by her former partner. The mother was sexually abused when she was aged 10 and again when aged 20. The mother says she has been diagnosed with PTSD. The mother says she is dyslexic. When cross-examined she said she had skimmed the affidavits and reports filed and had trouble understanding some of them.
It was also of some concern that the mother said that she had not thought about what she would do if X was ordered to live in City O with the father. It then became clear that rather than simply not turning her mind to a possible outcome, the case was a difficult issue for her to face. It was concerning that she said that as she has dyslexia she had trouble reading and understanding many of the court documents given the importance of this case.
Family consultant
Ms A prepared the s.11F report dated 29 January 2019 and also the family report released on 28 August 2019.
Ms A noted that the mother attended the s.11F report with support workers from three different agencies saying it was because of family violence despite neither she nor the father reporting any family violence since 2015 and noting the IVO expired in 2016.
Throughout the assessment the mother made claims about herself, the father and X. In response to the suggestion in her affidavit that SOCIT told the mother to consider the impact on X of repeatedly pursuing sexual abuse claims the mother said she could not recall what she had said and after being asked to read it she said she did not agree with their assessment and is just trying to protect her daughter. The family consultant noted that the mother presented as fixated and unable to process information contrary to her views. She could not remember why Region B Health were not able to see X for the sexual abuse counselling.
The family consultant thought the mother showed low levels of insight into her mental health and showed concerning levels of emotional liability and in response to requests for details often said she did not know, or that she was overwhelmed or could not remember.
The father denied the sexual abuse allegations and that he was unsure how they arose but thought that X and another little boy were playing a game which may have been taken out of proportion. He did raise concerns with Ms A about the mother’s boyfriend who spends time with X and whose history is unknown. The mother said that he is her friend not her boyfriend and that they are taking things slowly and that while she is not aware of his history she does not believe that he poses any risk to X.
When interviewed X said she knew her parents did not like each other because she has heard them arguing on the phone about who spends time with her. She said she wished she could go to her father’s house at night again and wants to go to the beach with him at City O like she did before and wants her mother to stop playing on her phone.
The observation with the father and X was relaxed and enjoyable and they appeared to have similar dispositions to each other being relaxed and calm.
With respect to the mother and X, the mother was calm in front of X but significantly anxious and uncontained when not. The family consultant made several recommendations which included the mother attending for a psychiatric assessment which included a review of her cognitive functioning and for the father to attend for a psychiatric assessment that did not need to include a cognitive assessment. She expressed concerns that X’s primary care arrangements be assessed as soon as possible given the sexual abuse allegations and the impact of mental health concerns on the mother’s parenting.
Family report
Ms A also prepared the family report. She noted that the mother had a support worker with her in the morning and a different one in the afternoon as well as her mother. She found the mother to be “highly evasive, and somewhat aggressive”. It was difficult to assess her because of her lack of judgment and insight. She said caution is therefore needed when considering the allegations and information the mother provides. When questioned about her allegations, the mother responded defensively and provocatively. This was consistent with her responses to cross examination. Ms A said her presentation went beyond the typical defensiveness displayed by a person when they are being challenged about the allegations they have made.
Ms A agreed with the ICL’s Counsel’s observations that the mother presents as rigid in her thinking and with fixations and beliefs with respect to a range of topics including the sexual abuse allegations, concern that X could not be separated from her, historical concerns about the father’s drinking and other general allegations. As the mother continues to believe the sexual abuse allegations this could lead to X having a very limited relationship or no relationship with her father and she could have an anxiety or even trauma response to him which does not have a basis but could negatively affect her emotionally. By the time of the family report the family consultant’s concerns about the mother’s rigidity in thinking and concerns about her lack of engagement with services increased.
Ms A also observed that X’s ability to separate from her mother had deteriorated in the time between the s.11F and family report interviews. She said her concerns about X worrying for her mother and feeling the need to look after her came more from her interviews with X than from reading the subpoenaed material. X clearly articulated her concerns about her mother missing her in recent interviews. She was unclear as to why this was other than potentially being encouraged in the co-dependent relationship. The potential long term impact on X is varied. She may not socialise much, she may not put other personal relationships as a priority and it could affect her relationship with her father. Isolation is a big issue for X and an immediate concern is her schooling suffering as she is having difficulty concentrating because of concerns about her mother.
The family consultant expressed the view that the mother appears isolated in Town P currently relying on Mr K and the Aboriginal support service. This is consistent with my assessment of the evidence. The mother was not able to reflect on her proposals and said it should remain at one night a fortnight as X misses her. She then said she could not afford increased travel because of petrol costs.
Concerningly, the mother described X as very anxious and clingy, wanting to know how long her mother is going to be outside for a cigarette and “lately” has been reluctant to go to school as she does not want to be away from her mother. This is consistent with Dr J’s concerns.
Ms A expressed concern that the mother had limited understanding of the impact her behaviour and decision making has on X and had fixated beliefs with respect to a number of topics. She was either unwilling or unable to process information that conflicts with her views. This is concerning because it raises the risk of there being future sexual abuse allegations raised despite the views of the Department and the police. It also is noted that the mother and Ms D had asked X leading questions.
The mother referred to various health conditions including being diagnosed with dyslexia at 17 and PTSD at 21 after her former partner stabbed her. The mother said she was in intensive care for a week. It is curious then that the police records refer to taking out an IVO against Ms F but do not refer to the stabbing. The mother said she was entitled to victims of crime compensation but did not follow through.
Ms A also referred to the records of Region B Health that on 25 September 2017 the mother presented as having unstable mood, anxiety and a reactive parenting style with a lack of routines at home. The hospital records relating to her surgery referred to needing to move the mother to her own room and that the mother was intermittently calm, anxious then angry.
The family consultant referred to Dr J’s diagnosis and said symptoms include having difficulties in a number of areas without the assistance of others including making routine decisions, starting projects, self-care, requiring others to resume responsibility and requiring others to impose themselves on her rather than risk rejection. She is not sure which of these apply to the mother.
Ms A was asked about Dr J’s evidence and was told that the mother does not agree with his diagnosis. The concern there is that in order to address the symptoms the person needs to get the right treatment.
People with dependent personality disorders can have a spectrum of personality traits. They have difficulties in interpersonal relationships and can be isolated. Living alone is not an indicator that they are not dependant. Personality functioning has themes of having difficulties with interpersonal relationships. The mother has a history of fractures with family relationships and instability.
The mother having primary care of X would have the most significant impact on X. If the mother moves to the City O area the mother could have alternate weekends and if the mother had fractures in her family relationships it would not stop X from continuing to have those relationships whilst in the father’s care if the father could facilitate that. If X remains with her mother X could become socially isolated because the mother has fractured relationships with family where relationships are cut off and then repaired. X could be confused about what a healthy relationship is. Ms A thought the school holidays could be shared perhaps on a week about basis or even two weeks. This is contingent on the mother engaging with services and following Dr J’s recommendations.
Ms A accepted that the father is untested as the primary carer and is untested in his ability to facilitate the mother’s relationship with X. If the mother remains untreated she recommends the change in primary care.
The mother needs to focus on her mental health and engage in the dialectal behavioural therapy for the next three years based on Dr J’s evidence. She did not have access to the Dr J’s assessments at the time of her family report.
The mother’s Counsel put to Ms A that the whilst the father is untested as a primary carer the mother has been caring for X since she was born. She has improved on X’s school attendance and this suggests that she can care for X. Ms A replied that one of the critical factors is the mother’s inability to support the father’s relationship with X. Her parenting is up and down and her mental health impacts on that. She has no doubt that the mother cares for X greatly but her mental health is not stable enough to influence her parenting in those areas consistently.
The mother did facilitate the relationship before the abuse allegations. She has complied with the orders. This is different to facilitating his relationship. She has been inflexible about making any changes to the arrangements even though it would save on X’s travel. The father will need to ensure that he facilitates the mother’s relationship with X and he will need to ensure he engages with supports and is proactive.
Ms A made it clear that it is outside her role to comment on Dr J’s diagnosis.
The mother denied being of any risk to X because of mental health or drug taking. She regularly used cannabis from the time she was 16 but says she stopped 11 months ago. The mother could not describe any benefits of X spending time with her father and made general unverified allegations about the father including drinking and mental health issues.
Significantly the family report writer found that X was more guarded and worried about her mother’s feelings when interviewed for the family report. She did not present with anxious behaviours but expressed adult views similar to the mother’s.
The report writer recorded X making the following comments at paragraphs 53 and 54 of the family report:
53. X attended in neat casual clothing with spectacles and sparkling star shaped earrings. She initially presented as more guarded, apprehensive and more worried about her mother’s feelings, than during the previous interview six months earlier in January 2019. X stated, “Well, maybe I shouldn’t stay at dad’s [anymore] because sometimes mum misses me,” and “Maybe we could meet dad in City Q but not go to City O and stay around City Q for mum.” X further advised, “Um says she really, really, really misses me. Last time I went to dad’s she waved goodbye and I saw her cry, on her face.”
54. During the interview and observations X did not present with anxiety related behaviours, rather she appeared to state adult like views, similar to those of Ms Elzers in relation to her well-being. She advised, “Since I have been with mum for so, so long, I get sick from anxiety because I’m not with mum.” In relation to school, X reported that she has had difficulties recently being able to concentrate at school because, “I felt sad about not seeing mum at school, I don’t know why.”
X enjoyed time with her father but appeared conflicted with respect to expressing views about spending more time with him as the family report sets out at paragraph 56:
56. X advised that she enjoys spending time with her dad; going shopping and to the park. She appeared to show a subtle alignment or identification with Mr Magana and stated, “I’m more of a farm girl.” X presented as conflicted in relation to considering more time with Mr Magana. X stated, “I want more [time] maybe, but stay in City Q for mum, so maybe half and half, that means yes and no.” X was provided with a range of hypothetical scenarios whereby she identified her thoughts and wishes in relation to these possibilities. X’s responses were prompt, and she appeared to have spent much time thinking about her living arrangements and parental relationships. X advised that if she moved to City O with her mother, “It would be really nice; if me and mum moved closer to dad.” X advised that if her dad moved closer to Town P, “I’d like that, that would be ok.” If she moved in with her dad in City O and visited her mother, X advised, “I kind of would like it, but I’m used to being with mum, so it would take me three or four years to get used to it and I kind of need to keep track of where mum is, she might not like it.” X paused, then stated, “Everyone lives near dad,” then stated, “I’m used to staying with mum, and I know everybody [in Town P].”
The family report writer recommends that if the Court finds that the mother’s parenting capacity is compromised by her mental health and that her inability to follow doctor’s advice and recommendations results in an unacceptable risk to X then X should live with the father. If the Court does not find mother’s parenting capacity is compromised then the father have alternate weekends with X from after school on Friday to Sunday with an increase in time if the father is to move closer to Town P.
The evaluation section of the report expresses concerns Ms A had with respect to the mother’s mental health on her parenting capacity and capacity to cope and those concerns include limited engagement with support services and support networks. Concerningly, X now appeared to be developing a belief that she cannot separate from the mother which is affecting her school. X is reporting that she has difficulties concentrating at school thinking about missing her mother. X has experienced multiple relocations and stability issues including interruptions to the relationships in her family and the father, interruptions with respect to her schooling and repeated interviews with respect to allegations of sexual abuse and periods of homelessness. She also received differing messages from parents about her cultural heritage.
When cross-examined Ms A said that as the mother believes the sexual abuse allegations the mother is unable to facilitate a solid relationship with the father and X may develop anxiety responses which are potentially trauma responses that do not necessarily have a proper basis but because she is taught that her father is a risk.
Ms A expressed concerns from reading the subpoenaed material and also her direct observations that X is becoming parentified and having a co-dependent emotional relationship with her mother, putting her mother’s emotions before her own. Her concerns were based on not just reading the subpoenaed material but also her direct observations. X could feel emotionally responsible for addressing the mother’s distress.
The report writer stated that it might be because of her dependent personality traits that the mother finds it difficult to separate from X and therefore may find it difficult to facilitate the father’s time with X. She opines the mother is not able to separate or differentiate from her own anxiety, sexual abuse history and experiences. That is an insightful observation.
She makes the following observations at paragraphs 71 and 72:
71. In the context of the impact of Ms Elzers not addressing her own trauma history or mental health concerns, it is possible that her issues and experiences could be psychologically projected into X. For example, Ms Elzers believing that X, rather than herself, experiences anxiety, believing that X, rather than herself, requires sexual assault counselling, believing that X, rather than herself, struggles with separation from Ms Elzers, and believing that X, rather than herself, does not want to have contact with Mr Magana. There are also concerns in relation to the potential for Ms Elzers to make future allegations of sexual abuse against Mr Magana regardless of specialised, professional assessments and outcomes. This was a concern noted in 2018, by school staff, Victoria police, Anglicare, and is a current concern for the writer. Ms Elzers stated during the interview, “They shut it down; I’m not sure what to do now; I’m not pursuing it darling, but if she said anything I would do something.”
72. Of further concern, is Ms Elzers ability to assess risk posed by other adults towards X, if fear and anxiety are driving Ms Elzers decision making. For example, if Ms Elzers has a future partner, it is unknown what capacity she has to protect and prioritise X’s needs, particularly if she has a tendency to become highly dependent on any new partners. There does not appear to be any information to indicate such risk posed by Ms Elzers ‘friend’ Mr K. However, Ms Elzers has not expanded her support network since proceedings commenced in 2017. She currently has two main supports in the Town P area, her friend of eighteen months, Mr K, and C Aboriginal Healing Service. Ms Elzers has a history of instability in housing and relationships and the likelihood of current circumstances remaining stable is unknown. Ms Elzers ability to sustain and expand her supports well into the future appears to be limited.
She found the father to be child focused with some limitations as to the practicalities. An advantage of living primarily with her father in City O is that both extended maternal and paternal family members live in the area. The father appears to have stable supports and despite the conflict and allegations made against him has not shown aggression or denigration towards the mother. He also seemed better able to support the mother and X’s relationship in contrast to the mother’s ability to support his and X’s relationship. She found that the father presents as someone willing to improve his skills and follow recommendations.
She does express concern about the father’s alcohol use and she states that he could benefit from psychoeducation on this point.
She further observed at paragraph 75:
As X progresses into adolescence, she will increasingly require more independence, and encouragement to develop friendships and relationships outside of her family. Mr Magana appears to be more capable of accepting these developmental needs and mentor X in this developmental stage in the future. Ms Elzers’s sexual abuse allegations, allegations of X being anxious and unable to separate from her, may create conflicts or a burden for X in the future, particularly as she forges relationships away from Ms Elzers. It is unclear what Ms Elzers’s response would be to X’s rejection if a co-dependant relationship with Ms Elzers in the future of any challenges to Ms Elzers thoughts and allegations against her father. Based on Ms Elzers presentation during the interview, it would is concerning if X was to be isolated from other relationships in the future, and has to manage Ms Elzers’s needs, including dependence on others, Ms Elzers’s difficult behaviours when she feels challenged, abandoned or struggles to make decisions.
She has real reservations about the mother’s ability to follow recommendations and remain engaged in supports. The mother does not seem able to support X’s relationship with the father and parenting has been up and down. Her mental health is not necessarily stable enough to parent consistently though there is no doubt that she cares for X greatly. I have real concerns about how willing the mother will be to engage consistently in support services once the proceedings are over.
The family report writer referred to subpoenaed records from the primary school that also referred to concerns for X and for the mother being fixated on engaging X in counselling for sexual abuse.
Ms A noted a strength in the assessment was the mother’s ability to contain her emotions and engage in X’s fantasy play and appeared playful and relaxed with her in contrast to her anxious and defensive presentation at interview.
Ms A said she did not think that the mother’s time required supervision but there needed to be some monitoring to see how the visits went.
Ms A was asked if the mother moved closer could the mother have more substantial and significant time with X. The concern would still be the mother’s capacity and inability to identify the positives of X’s relationship with the father and the big concern about X aligning with the mother in rejecting the father. She said that depending on the mother’s supports, professional and family, ideally the mother could have alternate weekends with X in the City O area.
Claims about X's Aboriginality
One of the somewhat bizarre aspects of this case is the mother’s claim that X is of Aboriginal descent. The mother does not claim to be of Aboriginal descent herself and says that she based this on a discussion that she had with the father’s aunt. She says that the aunt showed her a marriage certificate between an Aboriginal woman and a member of the family. She did not get a copy of the certificate and did not get a name of the woman. The father does not identify as Aboriginal. The mother has engaged in several Aboriginal support services on this basis.
The Anglicare records refer to X and the mother being referred to culturally appropriate supports. Anglicare records refer to X talking about how strongly she identifies with her Aboriginality.
The father’s Counsel suggested to the mother that if in the future X claims to be of Aboriginal heritage and it turns out that she is not this could be a big issue for her. The mother agreed and said that she is trying to deal with that issue now and is trying to get proof through Aboriginal services who are seeing if they can find any documentation.
She has not sought a family tree from the father. She said that the Aboriginal woman married into the father’s family through his great great grandfather or his great great great grandfather and the mother claims that his aunt told her that there was an Aboriginal in the family. The mother said she could appreciate the concern about her claiming that X is of Aboriginal descent. The mother then said that X is not currently receiving support from those services but she is and also said that the service provides support to non-indigenous people as well.
The mother denied that X frequently talks about her Aboriginal descent and denied encouraging X to do so but said if X talks to her about it she will talk to her. When the father’s Counsel suggested to the mother that X got this idea from her as she did not get it from the father the mother said she did not know. I am satisfied that it is the mother who has raised this on very tenuous information which is concerning.
Dr J asked the father about X's Aboriginality. He said she has none and that he checked with his grandmother who is the family historian.
The family report discusses the issue of culture and the confusion for X if the father and his family deny those cultural connections and the mother continues to insist that those cultural connections exist.
It is troubling that the mother has latched onto this idea without verifying it and raising it first with the father. Knowing one’s culture and being exposed to it can be important and a powerful part of a person’s identity. Being told and believing you are part of a culture and to later find out this is not true can be damaging.
The Family Law Act 1975 (Cth) (“Family Law Act”) s.61F recognises the importance of Aboriginal and Torres Strait Islander (“ASTI”) culture. It must also be pointed out that there is no single ATSI culture. There are thousands. The significance and richness comes from a child being exposed to their specific culture.
Closing addresses
In closing submissions Counsel for the ICL said that the ICL had always been concerned about the mother’s presentation but it had escalated during the course of the trial and hearing evidence where she showed a lack of insight, did not accept the diagnosis of Dr J and was in complete denial that her mental health has had an impact on X. The issues are not new and were identified in the subpoenaed material where several professionals raise concerns about the co-dependent relationship between the mother and X. The pathway for treatment for the mother would take years not months so final orders should be made now. The mother’s own evidence is that she genuinely believes that the father sexually abused X.
The father’s Counsel pointed out that the father was only briefly cross-examined and was not asked any questions about sexual abuse allegations which must be on instructions. He points out that neither the mother nor her counsellor believes Dr J’s diagnosis. There is no report from her therapist. The mother’s presentation, which is also reflected in the subpoenaed documents, is chaotic. The evidence of the mother and Ms D with respect to the sexual abuse allegations were inconsistent and vague. I accept that submission and whilst it occurred two years ago it is a very significant event.
Another concern is that the mother has a history of multiple moves. She is mobile and she could return to the City O area and given that it is important that she receive the right supports, she needs new ones. There were many concerns about her evidence.
In closing submissions the mother’s Counsel said that it is easy to attack someone for their mental health issues and some of the mud thrown will stick. The mother’s mental health issues are not new. She had these issues during her relationship with the father and he has only recently put his hand up to care for X. It is easy to overlook the fact that the mother is doing better. The difficulty with this submission as I pointed out is that the mother has failed to produce admissible medical evidence with respect to her current treatments. Furthermore, I do not accept her submission that the mother held up well in evidence. To suggest that the mother is being disadvantaged or prejudiced because of her mental health is not a fair summary of the concerns. Many parents have mental health issues and parent very well. It is an issue of assessing individual circumstances, whether or not that individual acknowledges their difficulties and engages with appropriate treatment management. Some forms of mental illness are more amenable to treatment than others. Issues with respect to personality functioning is much harder to treat.
The mother says she has improved her engagement with services and her mental health. She says that she has been the primary carer of X all of her life and that such a drastic move is not in X’s best interest. The father says that the mother was not a credible witness and that wherever her evidence is inconsistent with other evidence, that other evidence should be preferred.
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. 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 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 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. 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 children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children 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 children 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 children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the child to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the child spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the child spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. At paragraph 13 of the judgment the High Court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
None of the parties argued against the parents exercising equal shared parental responsibility. I have some concerns as to how that will work in practical terms but there is no doubt that both parents have valuable things to offer X. It is the mother who has been very caring for X in making those decisions so she may have some knowledge and insight into some issues that the father does not have as he has not had significant periods of time with her for block periods. The presumption with respect to equal shared parental responsibility has not been rebutted and on the balance of probabilities I consider that it is in X’s best interests for the parents to exercise equal shared parental responsibility.
X has described conflicting views where she would like more time with her father but is worried about the mother. The significant factors in this case concerns risk and the parents’ respective parenting capacities.
It is not practicable for there to be an equal time or substantial and significant shared time arrangement given the significant distance between the parties. If the parties remain living where they are currently then in my view it is not in X’s best interests to simply reverse the current arrangements such that the mother have time with X for a night or even two nights a fortnight given the amount of travel involved. In order to sustain alternate weekend visits the mother would need to travel to the City O area. As I indicated during the hearing, my view is that that amount of travel is simply unsustainable on a fortnightly basis. I will order that the mother spend time with X during school terms every fourth weekend and for one week during the term school holidays and for half the summer school holidays for a week about basis. If the mother moves to the City O area such that the distance between the parties’ homes is not greater than a 90 minute drive then the mother is to have alternate weekends from after school on Fridays until 5pm on Sundays during school terms. I have considered the mother’s submissions about ordering a substantially shared or equal time arrangement in the event I order X to live with the father and she lives in City O. I am not satisfied that it is in X’s best interests to make such an order. That will depend on the mother successfully seeking and engaging in long term specialised treatment.
I have real concerns about the mother’s capacity to provide for X’s physical, emotional and psychological needs consistently.
With respect to the assessment of unacceptable risk in Stott & Holgar [2017] FamCAFC 152 the Full Court conveniently summarised the issues at paragraphs 34 to 38 as follows:
34. The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
35. The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador (2009) 43 Fam LR 268 at [89].
36. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
37. As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
38. We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
I am satisfied that X is at an unacceptable risk of harm if she remains in the mother’s primary care. The warning signs have been there for some time. The changes that the family consultant observed in X from January 2019 to August 2019 are very concerning. It is consistent with Dr J’s comments about school refusal.
It is not a straight forward case. The father is untested as a primary carer.
I am concerned that the mother had not turned her mind to the possibility that X may be placed in the father’s primary care and whether she would return to the City O area in that instance but I consider that it is not the mother simply not addressing it in the same way as it was with reading the court documents or having someone assist her. Rather I think it was too difficult and too confronting for her to address these possibilities.
The risk the mother presents to X is based on a combination of factors. Part of this is the mother’s persistent belief that the father sexually abused X and her desire for X to make disclosures and be counselled for this. It is also the fact that the mother appears to struggle to manage practical things without assistance. The mother says she has improved in her ability to consistently take and collect X from school. The difficulty is that records from her current support providers is not in evidence. Nor are X’s current school reports. There is a real concern that the mother would not be able to sustain these improvements once the court proceedings finish and she is not subject to scrutiny. Most concerning of all is the ongoing risks of emotional harm to X. The harms are cumulative.
I accept that this will be very distressing for the mother and that this will also be distressing for X. It will involve enormous adjustments for X and the father will need to be mindful of this and be proactive about getting professional assistance for himself and X as well as relying on family support.
Due to the distressing outcome for the mother and the difficulty of transition for the mother and X, I made orders in Chambers requiring the parties to attend the judgment delivery in person together with their legal representative and a support person. Chambers has made arrangements for X to attend the child dispute services so that the ICL can explain the orders to X and a family consultant can provide support and assistance with the handover. I am of the view that X should start living with her father immediately. Delaying that is unlikely to help the parties or X. The first few visits with the mother will be short, being one overnight, and will be contingent upon it taking place in the City O area. The half-holiday arrangement will not commence until the first end of term holidays in 2020 as X needs to consolidate the living arrangements with her father prior to starting at her new school.
I certify that the preceding two hundred and thirty eight (238) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 12 December 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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Standing
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