MALIK & MALIK
[2016] FamCA 473
•10 June 2016
FAMILY COURT OF AUSTRALIA
| MALIK & MALIK | [2016] FamCA 473 |
| FAMILY LAW – CHILDREN – Best Interests – Where the child has an enmeshed relationship with the mother – Where the child’s relationship with the father, on the face of it, is at breaking point – Where the child has been exposed to physical and psychological harm as a result of the current set of circumstances – Child’s views – Sibling relationships – Where the child’s relationship with the mother is unhealthy and the child needs emotional release – Where the mother lacks insight and has failed to comply with previous final parenting orders – Where if the child remains with the mother further contravention or residence proceedings will result – Child to move to live with the father – Child to ultimately spend substantial and significant time with the mother following an initial embargo period of two months and a period of day only time. FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility is rebutted in circumstances where there is little prospect of the reduction in animosity between the parents and improvement in communication and a willingness to trust each other with the child’s long-term welfare – Father to have sole parental responsibility |
| Family Law Act 1975 (Cth), ss 60CC, 64B |
| Malik & Malik & Anor [2012] FamCA 165 |
| APPLICANT: | Mr A Malik |
| RESPONDENT: | Ms Malik |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Parramatta |
| FILE NUMBER: | PAC | 801 | of | 2010 |
| DATE DELIVERED: | 10 June 2016 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 9; 23-26 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kenny |
| SOLICITOR FOR THE APPLICANT: | Taperell Rutledge Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Carty |
| SOLICITOR FOR THE RESPONDENT: | Harpers Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Davies |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Parramatta |
Orders
That all previous parenting Orders in relation to Y born … 2005 (“the child”) are discharged.
Parental responsibility
That the father shall have sole parental responsibility for the child.
2.1In the exercise of sole parental responsibility as stated in Order 2 that the father notify and keep the mother informed of major aspects relating to the child’s welfare, including but not limited to:
(a)The identity of any treating health practitioners, including mental health practitioners and any major issues that may arise; and
(b)The child’s schooling including the details of the school in which she is enrolled and her academic and general progress.
2.2 The exercise of sole parental responsibility as stated in Order 2 shall exclude decisions regarding the child’s religious instruction and instead, the child shall be at liberty to worship in accordance with the faith practices within each parent’s individual household.
Residence
That the child shall live with the father, commencing forthwith.
Time and Communication
4.1 That for a period of eight (8) weeks from the date of these Orders,
the child shall spend no time and have no communication with the mother.
4.2 Thereafter time and communication with the mother shall be as follows:
4.2.1On each alternate Saturday from 9.00am to 5.00pm, commencing on 6 August 2016, for four (4) occasions, and thereafter;
4.2.2During school terms each alternate weekend, commencing from the first weekend of the fourth school term 2016, from the conclusion of school Friday to 5.00 pm Sunday with the mother to collect the child from school at the commencement of time and the father to collect the child from Suburb BW Railway Station at the conclusion of such time;
4.2.3For one half of each school holiday period, commencing in the holiday period between Terms 3 and 4 in 2016, and in the absence of an agreement between the parties for the first half of each school holiday period in each alternate year thereafter, and for the second half of each school term holiday period in 2017 and in each alternate year thereafter;
4.2.4From 5.00 pm Christmas Eve to 5.00 pm Christmas Day in 2017 and each alternate year thereafter;
4.2.5From 5.00 pm Friday to the commencement of school Monday on the weekend upon which Mother’s Day falls;
4.2.6During the Easter period in the event it does not fall within a school holiday period, from the conclusion of school on the Thursday immediately prior to Good Friday until 10.00 am on Easter Sunday; and
4.2.7 Other times as agreed between the parties.
That the mother’s time in Order 4 shall be suspended on the following occasions:
(a)The whole weekend upon which Father’s Day falls, commencing 2017;
(b)From 5.00 pm Christmas Eve to 5.00 pm Christmas Day in 2016 and each alternate year thereafter;
(c)From 5.00 pm on the day prior to the day of religious festival 1 until 5.00 pm three days later; and
(d) From 5.00 pm on the day prior to religious festival 2 until 5.00 pm three days later.
To facilitate time in Order 4, when collection or delivery is not to or from school, the mother shall collect the child from Town W Railway Station if it is the commencement of the mother’s time and the father shall collect the child from Suburb BW Railway Station if it is the conclusion of the mother’s time, unless otherwise agreed.
Unless otherwise agreed between the parties, school holiday periods as referred to in Order 4 shall be defined as follows:
(a)According to the school calendar of the school which the child attends;
(b)To commence at 10.00 am;
(c)To conclude at 5.00 pm;
(d)To be calculated from the day after the last day of school until and including the day immediately before school resumes;
(e)Pupil free days are deemed to be school holidays; and
(f)The mother’s time pursuant to Order 4.2.2 shall resume each school term on the first weekend in the event the mother had the first half of the preceding school holiday period and on the second weekend in the event the father had the second half of the preceding school holiday period.
Commencing eight (8) weeks after the date of these Orders, the mother shall be at liberty to communicate with the child by phone each Wednesday at a time commencing after 6.00 pm and before 7.00 pm, to be facilitated by the mother telephoning the child.
Each party shall keep the other advised of their current residential address and contact details, including telephone and email address.
Travel
For a period of 12 months from the date of these Orders, each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of the child Y (female) born … 2005 from the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to these Orders by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on that Watch List for a period 12 months.
Thereafter, each party be at liberty to travel overseas with the child provided:
(a)The travelling parent provides to the other parent not less than six (6) weeks written notice prior to the intended date of departure an itinerary of the proposed trip including:
(i)Date of departure and return;
(ii)Flight details and times;
(iii)All locations and destination of travel;
(iv)Details of accommodation including address, telephone and email contact details;
(b)The intended period of travel is during the period of time in which the child would otherwise be in that parent’s care, unless otherwise agreed; and
(c)The father shall provide the mother with the child’s valid passport within three (3) weeks of receiving the notice required in Order 12(a) and the mother shall return the passport to the father within two (2) weeks of return.
Therapeutic Assistance
That the father shall ensure that within two (2) weeks of the making of these Orders that he obtain:
(a)A Mental Health Treatment Plan for the child; and
(b)A referral to an experienced child and family clinical psychologist for the treatment for the child’s anxiety and to support her transition to the father’s household.
That the father has leave to provide to the child’s treating psychologist:
(a) A copy of Dr GS’s report dated 15 December 2015;
(b) A copy of these Orders and Reasons for Judgment;
(c) Contact details for the mother.
The father shall provide to Ms AG, for her to read, the single expert report of Dr GS dated 15 December 2015.
Restraints
Until the commencement of Order 4.2.2, the mother is restrained from:
(a)Attending at HP School or any other school at which the child is enrolled;
(b)Approaching or contacting the child at school;
(c)Causing any third party on behalf of the mother to approach or contact the child at school; and
(d)The Independent Children’s Lawyer shall provide a copy of these Orders to the Principal of HP School.
Each of the parents is restrained from criticising or denigrating the other parent or members of that parent’s household, to and in the presence of the child.
The father shall use his best efforts to ensure that each and every member of his household refrains from:
18.1Criticising the mother to, or in the presence of, the child; and
18.2Speaking about any aspect of the proceedings, other than in accordance with these Orders, to, or in the presence of, the child.
In the event that the child is not returned in accordance with these Orders by the mother to the father at the conclusion of a period of time, then, unless there has been a prior agreement in writing between the parties to vary the Orders, thereafter Orders for time are suspended pending further Order of the Court.
The father shall within 28 days of the date of these Orders, arrange for the child to have a meeting with the Independent Children’s Lawyer in order to have the Orders further explained to her and to answer any questions the child might have.
IT IS NOTED that publication of this judgment under the pseudonym Malik & Malik is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: PAC 801 of 2010
| Mr A Malik |
Applicant
And
| Ms Malik |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are competing applications for parenting orders in respect of one child, a girl aged 10 years and seven months (“the child”) at the date of hearing.
The parties are the parents of the child. They met in Adelaide in about 2001 and formed a relationship which had an off/on character for the first few years.
In February 2004 the father’s two daughters from his first marriage came to live with him. They were then aged about 6 and 4 years old. The father’s brother Mr M Malik moved in to live in the household to assist with their care. “[Uncle M]” was much loved by all members of the household.
The father says that from this time the mother began coming to the home on most weekends and that in 2005 she became a full-time member of the household. The mother asserts that the parties began full-time cohabitation early in 2004. Nothing turns on this difference in the parties’ evidence.
The child was born in 2005.
IN 2006 the parties married.
On 22 January 2010 they separated with the mother leaving with the child. The child was a little over 4 years of age at that time.
On 22 February 2010 proceedings were commenced by the mother in the Federal Circuit Court (then known as the Federal Magistrates Court).
On 5 November 2011 the parties were divorced.
There was a defended hearing in the Parramatta Registry of this Court in late 2011. Final Orders were made on 23 March 2012 (“the March 2012 Orders”).
In 2013 Uncle M died.
Time between the child and the father ceased in mid-September 2014.
On 2 March 2015 the father filed a fresh application in the Parramatta Registry. Soon after the application was transferred to this Registry.
Issues
The mother alleges, and the father denies, that the father has been sexually inappropriate with the child.
The father alleges, and the mother denies, that the mother has attempted to alienate the child from him.
The Father
The applicant is the father, aged 54. He is a professional.
The father was born in Middle East. He migrated to New Zealand in his early thirties and migrated again, to Australia, in mid-2000.
The father was married and divorced in New Zealand. His two teenage daughters, Ms T now aged 18 and S now aged 16 years, have lived with him for the past 12 years.
The father has been in a relationship with his current partner, Ms KG, since late 2011. Ms KG is aged 35. She has a 10 year old daughter, AM, who lives mostly with her grandmother through the week during term time and with her mother and the applicant father on alternate weekends and some week nights. AM also spends time with her own father on alternate weekends.
The father lives on the Central Coast of NSW. His household consists of himself, his two daughters, Ms KG, and on alternate weekends, AM.
The Mother
The respondent is the mother, aged 51. She is not presently working. Her occupation is given as “homemaker”.
The mother was born in South Australia.
She has apparently not re-partnered.
The subject child is the mother’s only child.
Her household apparently consists of herself and the child.
The mother is presently living in a suburb of Newcastle. She disclosed her current address when asked in the witness box but had not intended to do so.
In expanding on that topic the mother said she had removed herself from the electoral roll.
Events since final Orders in March 2012
Final parenting and property Orders were made after a defended hearing on
23 March 2012 as follows:
a)That the parties have equal shared parental responsibility;
b)That the child live with the mother at all times other than when living with the father; and
c)That the child live with the father each alternate weekend from Friday to Monday, and from 5.00 pm on Tuesday until the commencement of school on Wednesday in the other week, plus half all school holidays.
In April 2013 there was a second application. The mother filed an Initiating Application seeking enforcement of the property Orders. She also filed a Contravention Application.
On 29 May 2013 the Contravention Application of the mother was withdrawn. An Order for lump sum spousal maintenance was made by consent, representing a period of three years of support. There was a Notation to the Order that the mother would use her best endeavours during the following three years to enter the work force.
The child spent time with the father pursuant to the Orders until September 2014. The Father’s Day weekend was the last time that the child has spent unsupervised time with the father. The child was not provided by the mother for the week of term holiday time provided.
On 23 September 2014 the father sent the mother a letter by email drawing her attention to the contravention and putting her on notice that a Contravention Application could well follow.[1]
[1] Affidavit of the father filed 18/04/2016, Annexure C
In December 2014 the mother notified the father’s solicitors that due to “safety reasons, the child would not be spending time with him over Christmas”.
On 2 March 2015 the father filed an Initiating Application in the Family Court in Parramatta seeking orders as follows:
a)Equal shared parental responsibility;
b)Residence for the child with him; and
c)Alternate weekends and half school holidays with the mother.
Shortly after, the father filed a Notice of Risk alleging that around
December 2012 the mother had taken the child to the JH Clinic alleging the child had a urinary tract infection and a sore vagina. The father asserted that if that was the case then that condition had developed when the child was in the mother’s care.
On 12 March 2015 the mother ceased sending the child to school, HP School. The mother stored her household possessions, terminated her rented accommodation and went on what she described as a “road trip” to Adelaide via BB Town.
On 27 March 2015 the principal of that school reported to the father that the mother had informed him that the child would not be returning to school.
On 30 March 2015 the father filed an Amended Initiating Application with expanded interim orders. By that stage the father was not able to make contact with the mother.
On 7 April 2015 a Registrar of this Court noted that the mother provided the whereabouts of the child to the Court, not to be disclosed without further order.
On 16 April 2015 the mother filed a Response seeking the following orders:
a)Sole parental responsibility to the mother;
b)Residence for the child with her;
c)The child to spend time with the father to be determined after the release of a single expert report prepared by Dr GS; and
d)
The mother have leave to relocate the residence of the child to
South Australia.
On 16 April 2015 the mother also filed a Notice of Risk setting out the following elements:
The Mother has been informed that there is a risk that the child has been molested.
… the Father was sleeping in the same bed as the child.
… the child had regular and repeated symptoms of urinary tract infections and discomfort around her vaginal area.
During periods of time [when the child was spending time with the father], the child was regularly, and frequently, masturbating including in public or “pelvic grinding” causing the child embarrassment and the mother concern.
The mother is concerned that the child has either inappropriately witnessed sexual activity or potentially is copying sexual activity to which she has been exposed.
The mother acknowledges that the behaviour is possibly reactional to the stress of the prospect of spending time with her father.
…
The child … has been subjected to and exposed to family violence between the Father … and his current partner …
… [Ms T] [the father’s elder daughter] has been physically assaulted by the Father causing her to run away from the home where she lived with the Father and commenced to live with her Mother.
During periods of time when the Mother and Father were married, the Father [was] emotionally and financially controlling of the mother.
After separation, the Father sexually assaulted the Mother.
On 20 April 2015 interim Orders were made by the Court as follows:
a)Period of suspension of time between the child and the father;
b)Parties to attend upon a Family Consultant; and
c)Matter to be adjourned for consideration of interim orders.
On 29 April 2015 the parties attended upon a Family Consultant for the preparation of a Children and Parents Issues Assessment.
Children and Parents Issues Assessment (“CAPIA”)
On 5 May 2015 the CAPIA was released.
The Family Consultant noted that the child seemed nervous and reported being fearful of the father’s reaction if she told him she did not want to see him. The child explained that one of her fears was that the father would take her to Middle East without telling the mother. The mother had told her about this possibility.
The child had been seeing a counsellor for two years for a history of excessive masturbation. The mother was concerned about sexual abuse and had the child physically examined at hospital in 2012. She reported to the Family Consultant that the examining doctor “had told her verbally there was evidence of ‘molestation’ [but this] was not detailed in the written notes”.[2]
[2] CAPIA dated 05/05/2015, par 19
The recommendations of the Family Consultant were as follows:[3]
a)Supervision of time with the father, at least initially to provide additional support for the child;
b)Appointment of an Independent Children’s Lawyer;
c)A Family Report; and
d)Both parents to attend a Parenting after Separation course.
[3] CAPIA dated 05/05/2015, pars 28-31
Interim Orders of 7 May 2015
On 7 May 2015 interim Orders were made by consent providing for three short periods of supervised time in May 2015 for the child with the father.
On 9 May 2015 the father began spending supervised time with the child.
On 18 May 2015 the mother filed an Application in a Case seeking a transfer of the proceedings to this Registry (Newcastle).
On 20 May 2015 the father filed a Further Amended Initiating Application raising the additional issue of immunisation. The parties disagree about immunisation. The father would have the child immunised. The mother is opposed to that course. That issue was still alive in these proceedings.
On 22 May 2015 Orders were made for the appointment of a Single Expert. Interim parenting Orders were also made by consent that:
a)The mother was restrained from changing the child’s residence to anywhere outside the catchment of the school she was attending, HP School.
b)The mother was also directed to ensure continuous enrolment for the child at that school.
c)The child was to spend four hours each Saturday, supervised, with the father.
d)The mother was restrained from taking the child to any counsellor/social worker/psychologist or other mental health professional without further order of the Court.
On 22 June 2015 the proceedings were transferred to this Registry and the then interim Orders for supervised time were noted to continue pending restoration of the interim application of the father in this Registry.
On 20 July 2015 the father filed a Notice of Appeal in relation to the Orders made 22 June 2015.
On 5 August 2015 the matter was listed for the first day of a Less Adversarial Trial.
On 12 August 2015 the father filed a Further Amended Initiating Application, more closely defining proposed time to be spent between the child and the mother after the child began living with the father.
On 11 September 2015 the matter first came before me. Additional consent Orders were made for the father to make a weekly telephone call to the child and for the mother to authorise the child’s school to release information to the father.
On 15 September 2015 the child was admitted to hospital with acute appendicitis and had an appendectomy. The mother would not agree to the father visiting her.
Report by Single Expert
In late November 2015 the parties attended for interview with the Single Expert, a child and family psychiatrist. On 17 December 2015 the report of the Single Expert was released by the Court.
The recommendations of the expert report can be summarised as follows:
a)Shared parental responsibility;
b)Parents to live in reasonable proximity to each other;
c)No supervision of the father’s contact with the child;
d)Shared care: weekends with the father (three nights) and week nights with the mother (four nights);
e)Child be treated for anxiety by clinical psychologist; and
f)If mother fails to make child available, there be a three month suspension of time. [In her oral evidence, the Single Expert advised that she intended by that recommendation that at any time that the mother failed to make the child available, for example, by withholding her from attendance at school in order to avoid her being collected by the father, a period of suspension of three months should follow each time, with a view to persuading the mother to be compliant with orders.]
The dispute between the parties remained undiminished after release of the report. No change was made to current orders for supervised time.
On 2 February 2016 trial directions were made, setting the matter down for hearing for four days commencing on 23 May 2016.
On 10 February 2016 provision was made for the filing of expert evidence in relation to the specific issue of immunisation of the child.
On 29 February 2016 the father filed his last Amended Initiating Application which provided for rather different orders. He sought:
a)Sole parental responsibility for the child;
b)That the child live with him;
c)That the mother be restrained from approaching or communicating with the child or coming within 500 metres of the father’s residence or the school; and
d)Limited supervised time between the child and the mother for a period of three months, graduating to time for a whole day each Saturday.
On 14 March 2016 the mother filed her Amended Response, proposing:
a)Sole parental responsibility for herself;
b)That the child live with her; and
c)Time between the child and the father each alternate weekend, half school holidays and at other special times.
On 6 April 2016 the matter was before the Court. The Single Expert had become unexpectedly unavailable during the course of the hearing.
On 12 April 2106 an additional day was allocated, being 9 May 2016, for the Single Expert to be cross-examined.
On 9 May 2016 the Single Expert was cross-examined on behalf of all parties.
On 23 May 2016 the hearing continued and concluded within the allocated time.
Evidence
The documents relied on in respect of the application were as follows:
The Father
(a)Further (x4) Amended Initiating Application filed 29/02/2016;
(b)Notice of Risk and Child Abuse filed 09/03/2015;
(c)Affidavit of the father filed 18/04/2016;
(d)Affidavit of Mr CC (regarding immunisation) filed 14/04/2016;
(e)Affidavit of Ms KG, the father’s partner, filed 15/04/2016;
The Mother
(f)Amended Response filed 14/03/2016;
(g)Affidavit of the mother filed 15/04/2016;
Reports
(h)Expert Report dated 15/12/2015; and
(i)CAPIA dated 05/05/2015.
Oral Evidence
The Single Expert: Child and Family Psychiatrist
The Single Expert was available for cross-examination on the first day of the trial on 9 May 2016. She was also recalled briefly on the fifth and final day of trial. She gave responsive answers in the same clear, unambiguous language used in the expert report.
The Single Expert was very clear to say that there was an enmeshed relationship between the child and the mother and that at the time she saw the child in December 2015 she was “not a happy child, no, she was sad, ignoring the father and miserable”.
In her view, the child has internalised the mother’s view of the world which has led to the child suppressing her own positive feelings about the father which she is now denying. The Single Expert said that it was that psychological process that had made the child miserable and anxious, having a confused inner life. She has betrayed her own wishes and feelings in order to fit with the mother’s world view, that is, that the father is a bad and undesirable father.
The Single Expert described the enmeshment as one where:
a)The child’s survival depends on the relationship with the mother;
b)The two live closely together every day, and the mother drives the child to and from school; and
c)The child usually sleeps with the mother with the result for the child that “if the mother were to become angry or disappointed with the child, her [the child’s] whole world will be rocked”.
The Single Expert’s proposal of four nights with the mother and three nights with the father was designed, she said, “to rekindle the early attachment that the child had to the father” and to allow her “yearning for his love” to be met. Further, she said that the child would likely continue to show no relationship with the father to the mother but that nevertheless, the time spent in that way would allow the child to alter her view of her parents and to release her positive feelings about the father in his presence. She expressed the view that the relationship needed to be rekindled soon, “There’s not a lot of time, it’s easier now than when she is aligned with her peer group”.
I take from the evidence of the Single Expert that the child is presently not doing well. She is described as nervous, anxious, conflicted, confused, sad and under achieving at school. The Single Expert did not conduct an intelligence test, but described the child as a “very bright child, who is unable to relax in order to learn properly”.
There was also a description of what an order for no time between the child and the father would do, “she would continue to yearn for what she knew, she would feel that the part of her which originates with her father is bad, her self- esteem would suffer”. The Single Expert was clear to say that the enmeshment between the mother and the child was not consciously put in place by the mother; rather, it is a way of relating which is usually passed down generationally.
As a transition to new arrangements, she recommended not less than two weeks and up to three months for the child exclusively with the father, noting that a shorter period would be kinder given that the child will likely to be grief stricken at being removed from the mother’s full-time care, but a longer period may be necessary to ensure that she did not immediately fall back into the old relationship of complete enmeshment with the mother.
The Single Expert had assumed for the purpose of formulating her recommendation that the mother would remain living in the Newcastle area and that the child would continue at her current school. She had not understood that the mother was seeking approval to establish a residence for the child “within 70 kilometres of the father’s current address.”[4]
[4] Order 13 of the Amended Response, repeated in the Case Outline of the mother
The Single Expert was not so committed to her recommendations thereafter. She had been focused on maintaining the current school as a source of stability for the child.
The Single Expert had assessed the mother as having no appearance of mental illness and agreed that the mother would be miserable if the child went to live with the father or even spent substantial time with him, but “if she understood that the child had another relationship which she was not included in, she could understand it without liking it”.
On the first day, the Single Expert repeatedly described herself as optimistic that the mother would reflect on the benefit for the child of having a relationship with the father and would want to see her “flourish”.
On the second occasion of oral evidence the Single Expert also offered the view that “what I believe about humanity the Court may find not to be true about an individual”.
Having heard the mother in the witness box I conclude she is, at best, in the very early stages of that process of reflection. At worst she is committed to a particular way of thinking and acting, wholly resistant to change and strategic in her actions.
Her statement “I do overparent a bit, I need to step back there” may be a positive sign of a change of behaviour, as submitted by her Counsel, but equally could be an attempt to persuade the Court.
The Single Expert was clear to say that the mother had “some overvalued ideas but was not delusional”, “the mother tells different stories to different people but there is no psychiatric diagnosis for lying”.
The Single Expert was comfortable with the proposition that the mother has told lies about the father’s conduct and has felt confident that there would be no consequences from the Court or at all. The Single Expert made the point that the mother felt rewarded by the father’s time between himself and the child being reduced and supervised as a result of Court Orders made in 2015.
It is apparent that the Single Expert regarded the mother as simply saying negative, false things about the father in order to achieve her goal in respect of the child. Those things include that the father was the perpetrator of domestic violence, that the father had committed rape, that the father had intended to commit murder, and that the father may have perpetrated incest on one or both of his older daughters. In the Single Expert’s opinion the mother was operating by the principle “throw enough mud, some will stick”. Her view was that too much mud had been thrown so as to make the situation ridiculous.
The Single Expert agreed with the proposition that the mother had minimal insight into her impact on the child and was, in her own view, simply trying to garner evidence and support for herself against the father.
More than once she referred to the fact that the child needed the mother in her life but that the mother needed to cease lying about the father and retract her previous allegations. The Single Expert thought the mother could do so, and that if she did, the child could do well in the care of both parents, “the mother has to admit what she has done and change her attitude”.
The Single Expert appeared to be quite confident also that the mother did not actually believe the allegations that she had made, “she must know deep down, it’s not true”.
Impact of current arrangements
The Single Expert painted a sad picture of what it must be like for the child to have a short weekly period of supervised time and receive the weekly telephone call from the father.
She said that when just the mother and child were together, no doubt they were happy and relaxed, living in the mother’s world view but as the time drew near for the telephone call, the child would know that she was going to have to reject the father in front of the mother (in order to fit in with the mother’s world view of the father).
Likewise, she thought that the four hours of supervised time with the father was a miserable experience for the child, a grim task, too little time and too artificial a setting for the release of the emotions long suppressed by the child and logically, the child must dread the visits knowing that she would likely behave as she has many times before with rudeness, rejection, eye rolling and sarcasm, rejecting the father she loves, to please the mother that she loves.
The mother had formed the habit of taking the child to the doctor after periods of contact with the father. This was before contact ceased in 2014. There had been not less than 13 mid-stream urine tests to test for urinary tract infections. On occasions there was possible infection and retesting. The child had been taken to a sexual assault clinic and for counselling. The Single Expert said that the message for the child from these events that something unhealthy had happened at the father’s residence. That must logically be so. The child has had one full vaginal examination in October 2012.
The Single Expert was confident that the father was a good father based, at least in part, on the presentation of his two older teenage daughters and her own observations of him. In the father’s household the Single Expert thought that the child would feel what it was like to live in a normal household provided she did not hear the mother criticised. The idea would be to understand “what was on offer” in the father’s household.
I understood the Single Expert’s evidence to be that the loss of either parent from her life would be destructive for the child and that if she were to be kept in her current school, there would be the benefit of regular time with the mother at the school which she presently attends, and extended weekends (Friday after school until Monday before school) with the father at times when he is most likely to be able to give her quite a lot of undivided attention, that is, at weekends rather than during the course of a busy working week.
The overwhelming information from the Single Expert Report was that things really needed to change for the child. That enmeshment with the mother had to be immediately reduced, autonomy allowed, and her true feelings for the father released.
The Father
The evidence of the father opened with specific denials of allegations raised by the mother in her affidavit as follows.
a)He denied that the mother had been 100 per cent responsible for the care of the child during the marriage and spelt out his habit of returning from work about 4.30 - 5.00 pm and providing care for the child, “I put her to bed, changed her nappy, and gave her dinner”. He referred to the mother’s claim of total responsibility for care as exaggerated.[5]
[5] Affidavit of the mother filed 15/04/2016, par 7
b)He denied the mother’s assertion that the father regularly fed the child unhealthy foods including doughnuts for breakfast at a take away restaurant. The father referred to Uncle M having been the cook in the family making delicious meals, and that when his brother died, he took over. There were occasional treats. Again he referred to the mother as having exaggerated the position.[6]
c)The father denied that he failed to ensure that the child maintained a good level of hygiene. He said that he had bought a toothbrush, the same as hers, and that he and the child cleaned their teeth together and that he showered her everyday. He made the comment, “if I shower her, it’s molesting her, if don’t, there’s complaint”.[7]
d)The father forcefully denied dental infection in the child, “never, no signs of infection”, when she had allegedly returned to the mother with a swollen and inflamed face, an apparent infection in her jaw and gums.[8] Not unreasonably, the father said that he was a health professional able to recognise early signs of infection and that such a thing had never happened. He denied the assertion that he neglected the child’s medical needs and that he took the child to school sick.[9]
e)The mother had asserted that the child had told her that on one occasion when she was at the father’s work for each day of the school holidays and that on one occasion, she and AM were forced to “clean the … room and there was blood where we had to clean”.[10] The father rejected that allegation and noted that on occasions he had asked the child and AM to tidy up the children’s play area to assist him.
f)In relation to matters in her infancy the father denied any neglect. He conceded there may have been an occasion when the child fell down his stairs at home when she was an infant but could not recall it.
g)The mother raised the assertion that the child told her the following story… that AM had been left alone at night whilst she was asleep with the house locked up, and on hearing this, that the child had become terrified that such a thing would happen again. The father was indignant and strongly asserted that this incident was completely untrue and that he had never left any of the children in his care alone at night.[11]
h)The mother had alleged that the father left his older daughters on their own to go to work at night, then aged 10 and 12. It was a strange allegation given that the mother would have been a member of the household at that time in 2009. In any event the father rejected the proposition again that he had ever left his children home alone at night.[12]
i)The mother raised a complaint said to have been made by the child about the choosing of decoration of the room she shares with AM in the father’s home. The father was not dismissive. He gave evidence that both girls had chosen the colour for the room, the linens they preferred and consideration had been given to both of them.[13]
j)A complaint was raised by the mother that in her own view the father “does not facilitate a close, strong and meaningful relationship between [the child] and her sisters”.[14] The father was very fast to respond, “of course I do that, that’s why I’m here”.
k)The mother raised a complaint, she said that was raised “many times”, that the child felt “unloved” in the father’s household.[15] The father appeared somewhat defeated in responding to this allegation. He asked rhetorically, “[the child] not loved in the house? That’s completely untrue. We all love her”.
[6] Affidavit of the mother filed 15/04/2016, pars 20-21
[7] Affidavit of the mother filed 15/04/2016, pars 22-23
[8] Affidavit of the mother filed 15/04/2016, par 23
[9] Affidavit of the mother filed 15/04/2016, par 24
[10] Affidavit of the mother filed 15/04/2016, par 29
[11] Affidavit of the mother filed 15/04/2016, par 32
[12] Affidavit of the mother filed 15/04/2016, par 39
[13] Affidavit of the mother filed 15/04/2016, par 40
[14] Affidavit of the mother filed 15/04/2016, par 50
[15] Affidavit of the mother filed 15/04/2016, par 52
Just as the allegations raised by the mother ranged from minor domestic incidents such as tooth cleaning and interior decoration to major allegations of emotional neglect and possible abuse, cross-examination of the father also followed that pattern.
The father was asked about his working hours and the restriction there might be on his ability to spend time with the child.
He was chided for allegedly having told his children that their uncle was away overseas, when in fact, he had died. Clearly, the mother had not known that the father’s two older daughters had been present in the home when their uncle died from a fatal heart attack, the ambulance having arrived too late to assist. The father gave a sensitive explanation for having told the subject child, who was not present in the home, that her uncle was overseas in order to give her the chance to get used to his absence before he explained to her the full truth of his death.
The father was extensively cross-examined about the impact on the child of the older sister Ms T having gone to live with her own mother for twelve months from late 2013. The father patiently explained that he knew that Ms T saw the child because his first wife and his second wife (the mother in these proceedings) met for coffee and the child was there. He had seen the cards that the child had prepared for her sister.
The proposition was put to the father that such meetings had not happened, presumably on instructions. Later the mother referred to the child having a close and important relationship with the father’s first wife. Logically there must have been meetings.
The father said, and I accept, that from the child’s perspective the absence of Ms T from the house would not have had a big impact. Ms T had already begun to be absent from the house on some of the weekends when the child was there, and that she had the opportunity to see her in the company of the child’s mother.
Again, the father was cross-examined on the basis that there must have been some adverse impact for the child when Ms KG, the father’s partner moved into the household to live. The father gave evidence that the child and AM had previously met, they had been friends together and they had been swimming together. He thought the impact on the child of Ms KG, and to some extent AM, moving into the house had been a positive one, “[the child] loved it, they did lots of things together”.
The questions suggested fears on the mother’s part about the child in the household rather than knowledge of actual events which had caused the child harm.
The father was extensively cross-examined about his ability to spend time with the child. I accept that as a health professional, who owns and runs his own business out of a property he owns himself, that he is able to determine his own hours and days. This flexibility is enhanced by the fact that Ms KG is a manager and has the ability to work from home.
The father gave evidence, which I have no reason to reject, that he designs the timing of his work commitments around the need to drop children off to school before he goes in to work and that he is always home after work in the evening, except in exceptional circumstances and he is never more than minutes from home.
Again there was an unrealistic edge to the cross-examination, as if it were the case that unless the father was present in the home with the child at all times, he would be an unsuitable custodian for her. This may reflect the mother’s presence in her home with the child at all times and her decision not to enter the work force as anticipated in May 2013.
There was a searching cross-examination of the father about the fact that AM spends most of the week nights during term time in the home of her maternal grandmother. The father explained that AM had not accepted a change of school at all well and that Ms KG had taken her for counselling and had attempted everything she could think to assist her to adjust, but in the end, took her back to her old school and “she did well”.
The father was asked about his ability to assist with homework for the child. Ms T, who is in her first year at university, and S, who is in Year 11, have lived with him since they were six and four. It appears that the mother has not reflected on those girls having done sufficiently well for her to assume that the father has a willingness and capacity to assist children with their homework.
The proposition was put to the father, somewhat tentatively, that the child had been exposed to fighting between himself and Ms KG. He denied it. He said there had been normal family arguments, usually disputes about what to eat or whether or not to go out to eat.
The father described such an incident as one where he had wanted to plait the child’s hair to show her that he could do it and that Ms KG had wanted to do [the child’s] hair for her instead because she was better at it. The father, not unreasonably, said “if that difference of opinion was scary for [the child], then so it was”, but clearly did not think that it had been. That is not to say that the child has not made complaints to the mother at home, especially if there has been anxious inquiry.
The proposition was certainly put that the child had been called a “fucking retard” by Ms KG. The child had reported that to the Single Expert and she had reported it to the supervisor of a visit in October 2015.[16]
[16] Exhibit 4
On the latter occasion the child is reported to have arrived in a good mood and happily chatted to a supervisor whilst waiting for the father. Ms KG and AM came to the contact session, then in the trip between the collection point and the father’s home, the supervisor and the child had a conversation where the supervisor asked the child how she was getting along with the father.
The child is reported to have reacted in this way, “[the child] didn’t say anything, just shook her head from side to side with a solemn look on her face”. She then said to the supervisor, “[Ms KG] called me a fucking retard when she was having a fight with Dad”. Apparently the child then went to tell the supervisor about selling a dolls house and getting $30 for it. Apparently there was no change in affect and no reference to the child being reluctant in any way to engage with Ms KG and AM during that visit.
On the way home, alone in the car, the child made complaints to the supervisor despite being reported to have had a good time. The child told the supervisor such things as “they didn’t love me”, “[Ms KG] would buy [AM] things and not me”, “[Ms KG] would hold [Ms T’s] hand, not mine”. These complaints were not spontaneous and did not appear to be causing the child any distress in recollection of events.
Vague propositions were put to the father, such as, that the child might be frightened if she perceived tension in the father’s household and that she might be jealous of other members of the household. Although the father had maintained an even, good natured attitude to questions, he responded to that one with some intensity, “we all love [the child], we include her in everything, she might be jealous because she’s not living with us all the time”.
He then made a heart-felt statement about the child having been a courageous child who had survived very well after “two years of being taken to the doctor and having to deny her father abused her”. This is an issue of some significance.
Allegations of sexual abuse
Initially, the proposition was put to the father that there was no allegation of sexual abuse in the affidavits filed for this hearing. In fact, as was later conceded, that is not the case. The mother’s affidavit says this: [17]
Though it makes me sick to think about this or admit it, I am also worried that [the father] may have previously sexually assaulted [the child] and could continue to do so.
[17] Affidavit of the mother filed 15/04/2016, par 116
The mother had also said to the Single Expert in her interviews in late 2015 the following:[18]
I [the Single Expert] asked the mother if she really believed the father was sexually assaulting his daughters. She said: ‘Yes I do. [The child] is not saying. She has been asked, ‘has anyone touched you?’ … [S] asked me to touch her privates. I accused [the father] of incest with [S]. He went into a rage. I understand that. It’s the worst thing in the world. I [the Single Expert] asked if that occurred before she suspected it had happened to [the child]. She said the father had said, ‘[S] might have been molested but it happened under her mother’s care’.
[18] Single Expert Report dated 15/12/2015, page 8
Counsel for the mother enunciated the mother’s current position as “something may have happened but [the mother] is not in a position to know what it is precisely”.
A Notice of Risk filed 16 April 2015 was not relied on in these proceedings. Risk of sexual abuse and exposure to Family Violence was raised in that document. It is hard to understand what it is that has happened over the last 12 months that causes the mother to now take a different position, dropping the requirement for supervision.
There was also a significant cross-examination about the child’s history of clenching her legs in a way that suggests masturbation and referred to throughout the documents as “PSB” (pelvic soothing behaviour). The father readily agreed that it was not helpful to the child if she behaved that way in public. It appears to be a common position that she has been behaving in that way since about four years of age.
The proposition was put to the father that S had also done that and that the mother had seen it and told the father about it during the relationship. He firmly denied it, “No. She didn’t say it to me, and no, I didn’t see it”.
When reminded that the mother had raised her concerns about this conduct by the child in 2011 the father said with some bitterness, “At the end of proceedings, that’s why the hearing was adjourned from July to December in 2011”. The mother had included her interpretation of the child’s behaviour in her trial affidavit.
The proposition was put to the father that there had only been one full genital examination of the child on 10 October 2012 and no interview had been conducted or arranged by the Department of Family and Community Services (“the Department”). The father rejected the inference that therefore no harm had come to the child.
The statement by the father, that in his view one full genital examination was one too many when there was no need for it to happen, has substance.
Certainly the Discharge Referral from the JH Clinic gives rise to some concern:[19]
… mother [presented with the child complaining of] onset of rash around vagina tonight … onset of lower abdominal pain … [the child was brought to the] department with on-call social worker requesting review by paediatrician - and … referral to [Sexual Assault Team].
[19] Exhibit 6
The mother reported her concerns about the child’s “abnormal sexual behaviour which is more after she returns seeing her Dad”. At the time of that report, the child had been displaying the sexualised behaviour, PSB, for at least three years.
On examination there was “nil rash” noted on the genital examination and some “tenderness in perianal area”. The diagnosis was “abdominal pain most likely related to constipation”.
The mother reports that the doctor who spoke to the child asked her if the father had touched her on the vagina. She was also asked about whether or not her uncle had touched her on the vagina.
There is a reference to a conversation with a sexual assault counsellor and advice that:
… due to lack of evidence and admittance{sic} of sexual assault team would be able to conduct any further examination but will discuss with team to follow patient if necessary.[20]
[20] Exhibit 6
The child was later referred to counselling with focus on body safety and [the child’s] masturbation/grinding behaviours. That counselling continued until October 2014 when the counsellor recommended that there was no need to come back. However, the counsellor is reported by the mother to have said to her “come back if the problems start again or if [the child] sees her father”.[21]
[21] Affidavit of the mother filed 15/04/2016, par 122
The mother also said that she saw a few other occasions when she saw signs that she thought might be indicative of sexual harm.
After the child had spent half the Christmas holidays (probably in 2013) with the father, she again returned to the mother reportedly with a sore vagina and was again taken to the doctor. That was in January 2014.
It can hardly be said that the focus on possible sexual abuse has been limited to one full genital examination and a decision not to interview the child.
In the records from the Department there is a report of the child having stated to the mother that “the father touches the child down there”.[22]
[22] Green flag 5, par 7
At that time, the mother stated that Uncle M watched pornography in front of the children. In cross examination she said she thought the children may have walked into their uncle’s room when he was watching adult material.
The mother said that the father had been sexually and physically abusive towards the mother and had raped her in the past. That allegation was raised in the hearing in 2011. Then, as now, there is no evidence to support it.
In my view, the father is quite properly concerned about the extent to which the child has been questioned about possible sexual abuse, over at least the last three years.
In September 2014 time between the child and the father ceased because the mother stopped making the child available. The father was sternly cross-examined about the fact that he had said to the child on Father’s Day in 2014 when she arrived more than an hour late, “I’ve been waiting for you, where have you been?” Thereafter, there was a period of five months of the father not seeing the child at all. His attempts to make contact by sending a text for her on the mother’s telephone was sharply criticised on the basis that the child might have the opportunity to see adult conversations by text message.
There was a complete failure to acknowledge that the father had been given no particular explanation of why the child was not being provided for time in accordance with the orders, other than the words, “there’s a safety issue”. To the extent that the mother regrets having failed to comply with the Orders in the way that she did, it did not emerge during the hearing.
The mother’s attempt to justify her decision to cease sending the child was based on her fear that the father might take the child to Middle East in the September/October 2014 school holidays. There was no evidence whatsoever to support the proposition that he had that intention. On balance, it seems more likely that the mother simply wished to retain the child because she was unwilling or unable to contain her fears and feelings about events in the father’s household.
The fact that there is an Order[23] restraining both parties from removing the child from Australia confirms me in this view.
[23] Orders dated 23 March 2012, order 7
Between September 2014 and the present time the child has gone from being openly affectionate with the father, “I love you Dad” and counting down the days to next time she saw him, to the current situation where she is refusing to engage with him, ignoring him and being sarcastic in a supervised setting.
As the cross-examination went on the mother’s fears, rather than evidence of any wrong doing in the father’s household, were on display. The proposition was put to the father that the child might have thought the father was going to hit his partner Ms KG at a time when they were in disagreement about who would plait the child’s hair. The father said “that’s her perception”.
Similarly, that the child might have seen her two old sisters fighting and it could frighten her, and the father agreed, but made the point that in an ordinary household, two teenage sisters might fight.
The proposition was repeatedly put to him that he had shouted or yelled in a loud voice about household members. The father denied it, and subsequently, Ms KG also denied that he went any further than “getting a bit excited when they disagreed”.
Health of child
The father conceded that he had signed an “Immunisation Exemption” application form.[24] His evidence was that they had discussed this issue “lots of times” and that he had hoped that the mother would change her mind.
[24] Exhibit 10
I note that the issue of immunisation was a live one in the proceedings in 2011. Her Honour the Learned Trial judge said this:[25]
In the absence of expert evidence, I will not attempt to adjudicate the parents dispute as to the immunisation of [the child]. They will need to resolve this issue for themselves
[25]Malik & Malik & Anor [2012] FamCA 165, par 100
It is apparent that the parties have disagreed as least since 2011, but probably since the issue first started to come up after the child’s birth and that they have been quite unable to resolve the issue.
The father did file an affidavit from an immunologist on the benefits of immunisation. The mother chose not to file any expert evidence.
However, the parties reached a consensus that whoever had parental responsibility for the child would have authority to make a decision on immunisation or not.
The father certainly raised concerns about the child’s asthma and rejected the proposition that the child does not suffer from severe asthma. A report from a paediatrician was annexed to the father’s affidavit[26] which included as one of the diagnoses of the doctor, “Persistent asthma/allergic rhinitis/fluticasone … 2 puffs twice daily, Nasonex each nostril nocte”. Diagnosis “number 5” was “Disagreement between parents about medical therapies”.
[26] Affidavit of the father dated 18/04/2016, Annexure Y
Certainly at that time in April 2013 the paediatrician referred to significant symptoms which are poorly controlled currently. There is then reference to particular medications and a written asthma plan. The father made the point that because the asthma was unresolved, that in medical sense, that made it serious asthma.
The parents do not agree even at that level. The mother’s position was that the child has asthma but is rarely symptomatic. The father had heard the child wheezing and was concerned about her levels of medication.
Education
The father’s proposal is that if the child lives with him, she would attend the same school that her older sisters have attended. He has been satisfied with the school.
It is apparent from her application that the mother does not oppose the child being enrolled in that school and moving into private education generally provided that the father pays the fees.[27]
[27] Order 22 of the Amended Response filed 14/03/2016
There was significant challenge in cross-examination on behalf of the mother and the Independent Children’s Lawyer in relation to the poor relationship between the father’s two older girls and their mother. The father acknowledged that the relationship was a poor one. I have no reason not to accept his evidence that he used to fly from Australia to New Zealand for them to have holidays with their mother after they came to live with him and that when the mother came to live in Australia he made the children available for her to see them and when she had nowhere to live, allowed her to come to the house to see them there.
The father attributed the breakdown of Ms T’s relationship with her mother to the episode from late 2013 to late 2014 when Ms T left the father’s home ostensibly to live with the mother but primarily, it seems, to live with her boyfriend.
The father and Ms KG strongly disapproved of Ms T being able to do this and in time, Ms T returned to live in the family home with the father.
The relationship between the girls and their step-mother, the mother in these proceedings, has also deteriorated since separation. There have been a variety of factors. One of them was that the mother chose to read Ms T’s diary and use her notes in the proceedings in 2011. Another is that the older girls have been caught up in the dispute between the parents over how and when the child could spend time with the father and with them.
Further, the older girls are strongly loyal to the father and are offended by the idea that he is obliged to have a supervisor present. They have not reached the age and maturity, of understanding that that was something the father had agreed to in order to keep the relationship with the child alive. The requirement for supervision has adversely affected their view of their step-mother who they formerly loved and relied on.
Supervision has certainly created a difficult situation. The child has at times been dismissive and rude. She refused to allow the father to look at her infected toe for her. Her behaviour has certainly not been consistent with a child who is genuinely frightened of the father’s reactions.
The father frankly conceded that he had a poor relationship with the mother and a poor opinion of her particularly since September 2014, but he said this in response to a question about the impact on the child of being surrounded by “people who hate [the mother]”, he said, and I accept his evidence, “We have to hold our feelings. We have to have a new start. We will be very supportive of [the child]. We will agree to keep feelings away from [the child]”.
Whilst I accept that the father may not be able to completely control his older daughters, the evidence suggests a strong family feeling within the household and a great love for the child that is likely to be conducive to the adults in the household, including S aged almost 17, keeping their opinions and feelings about the mother to themselves in the child’s presence.
I formed the impression that the father is a loving and overtly affectionate father to his three children and his step-daughter AM. He has sustained visits at a contact centre for 12 months. Supervision was put in place for support for the child but became a permanent arrangement.,
This happened initially for procedural reasons. More recently, in mid March 2016 the mother changed the orders sought to provision for time and communication with the father in similar terms to the 2012 Orders. However there was no agreement, despite discussion, about dispensing with supervision..
The Father’s Partner, Ms KG
Ms KG presented as an honest, straight forward and intelligent person. Her evidence is strongly supportive of a finding that she is a careful and attentive mother to her own child, AM, and a loving and affectionate step-mother to the father’s three daughters.
Ms KG was upset by the production of a large photograph of AM apparently taken by the mother from Ms KG’s Facebook page but was otherwise calm and even in her responses.
The proposition was put to her that the child had reported to the Single Expert that Ms KG had called her “a fucking retard”. Her response was instant, “Absolutely not. Never. No way. Not to a child, never ever, not to my own child, let alone someone’s child, no”. I have no hesitation in accepting that Ms KG did not and would not use such an expression to a child.
Throughout her cross-examination, many aspects of life in the father’s home came to light. It was apparent that the mother had the opportunity by sitting in Court, to learn what she could have found out by civil conversation with the father and Ms KG. Such is the state of animosity between the mother and the father that such easy conversation is impossible.
I note that in the reasons for judgment of the March 2012 Orders there was this statement:[28]
… Regrettably, the high level of conflict between the mother and the father effectively prevents them from engaging in constructive discussion and cooperative decision making. It can only be hoped that this situation will improve once they are free of the stress of these proceedings.
[28]Malik & Malik & Anor [2012] FamCA 165, par 89
It is apparent, having heard all of the evidence, that the situation, with respect, accurately identified by her Honour, has not improved; quite the contrary.
Cross-examination of Ms KG as to whether or not the bedroom that the child and AM had previously shared was decorated only to the taste of AM, to the exclusion of the child’s taste, could be nothing other than a reflection of the mother’s anxious, fearful, concerns for the child and based in fear, not knowledge. Further it was disproportionate.
Ms KG rejected the proposition that the older girls ignored the child when she came to the home. Her answer was, “No. The reverse. [The child] ignores them. Doesn’t respond to cuddles. Looks to the supervisor when they speak to her”.
Ms KG also gave evidence of the sad episode on 2 January 2016 when the family had prepared a full Christmas occasion for the child’s benefit with the house still decorated; the tree up, Christmas lunch and many presents waiting to be opened by everyone in the family. Ms KG described the child who was “not excited, not happy, not responsive as she had always been on Christmas day in the past … she looked at the supervisor and ignored us”. Ms KG had been quite upset at the time and was still able to recollect how disappointed the other members of the family had been at the child’s reaction.
Appropriately Ms KG was able to anticipate the difficulties the child would have coming to spend time or living in the household, “She’ll feel put out. She’ll miss her mum. She’s had a supervisor. She’ll need help”.
I was impressed by Ms KG’s evidence in response to my enquiry as to whether or not she would like to read the Single Expert report. I am satisfied that Ms KG had not read it and knew nothing of its contents. She said that if it would assist her to know things that would help the child and the other girls she would appreciate the order being made, but she would not want to read the report just “for the sake of knowing”.
I formed the impression that Ms KG has a solid commitment to the father and to the whole of the family, that she is able to contend with the mother, although she has been frustrated at times by things that the mother has said and done, and that she would be capable of doing and saying what had to be done and said in the best interests of the child.
The Mother
The evidence of the mother was profoundly contradictory and I ultimately came to the conclusion that the mother herself did not see the contradictions. She repeatedly said that the child needed to have a good relationship with the father and that the mother herself wanted that to happen.
She said that she understood that the child would want to be a part of the paternal family and that that was appropriate. On the other hand, she said that the child was scared of the father and did not want to spend time with him and that her wishes should be respected.
The mother rejected the evidence of the Single Expert that she herself was a central problem for the child, that there was an enmeshed relationship between them and that the child could not be independent in the mother’s presence.
The mother rejected the Single Expert’s diagnosis that “[the child] was an anxious girl with Separation Anxiety, Social Anxiety and Generalised Anxiety Disorders … [and] that the child’s current relationship with the mother being enmeshed with her is unhealthy”.[29]
[29] Single Expert Report dated 15/12/2015, page 45(j)
The evidence of the mother was confidently given. When she was challenged the mother would draw back and look puzzled, frowning. I took this facial expression, very often repeated, to be incredulity by the mother that she could be so misunderstood.
The proposition was put to her that she would use innuendo without following through on her complaint. The mother denied it and appeared to be particularly puzzled that anyone could come to such a conclusion about her.
The mother confidently agreed that her own feelings about the father was that she was scared that he would take the child from her, that he was a liar, a manipulator, a con man, rapist and perhaps a paedophile. Nevertheless, she strongly advocated for her current position of unsupervised time with alternate weekends and half school holidays for the child with the father.
It is difficult to capture the mercurial nature of the mother’s responses under challenge. One example, not a serious issue in itself, demonstrates the mother’s mastery, conscious or not, of using half-truths to conceal facts. It is about the mother’s car.
In cross-examination the father was challenged on an assertion that he had made that the mother used public transport to bring the child to contact visits so she would be overtired; his proposition being that the mother was making the child suffer deliberately in that context. The father confirmed that was his view and said this, “It’s difficult for the child to come by train and bus there and back. Why not drive her?” The proposition was then put to the father, clearly on instructions, that the mother does not have a car. The father disagreed. He asserted that the mother had exclusive use of her own mother’s car. He said, “the maternal grandmother was in her nineties and living in a nursing home. Quite unwell”.
In her own cross-examination, there was the following evidence before the mother conceded, effectively, that she did have exclusive use of the car and that it was her decision how it was used. It went like this:
Question: Did you regret offering to deliver [the child] to [Town W]?
Answer: No.
Question: Where does your mother live?
Answer: In an aged-care centre in [a suburb of Newcastle].
Question: Does she own a car?
Answer: Yes. A ...
Question: Does she keep the car at the aged-care centre?
Answer: No. She’s never driven it?
Question: Is it registered?
Answer: Yes.
Question: Is it functioning?
Answer: Yes.
Question: How old is your mother?
Answer: 87.
Question: Has she still got her faculties?
Answer: She has some memory loss.
Question: What is your understanding of the use of the car by you?
Answer: Conditional.
Question:Is it a condition that you not use it to deliver [the child] to [the father]?
Answer: On occasions it is.
Question:What are the occasions you’re not allowed to use it in that way?
Answer:Mum said, ‘it’s better for you to go by train. Don’t drive if it’s better for you’.
Question:You could hop in the [car] and go to [Town W] whenever you want?
Answer: She’s fine with what I’m fine with.
Question: Is it your call?
Answer: Yes.
Question:On a number of occasions [the child’s] been brought to contact sick?
Answer: I’ve driven her then.
Question: So it’s up to you when you drive?
Answer: When you put it like this, yes.
The mother was not candid or straightforward. I had the impression that in considering her responses, she was searching for the answer that would best promote her case, rather than being direct and responsive.
During the course of one whole long day of cross-examination of the mother, the picture which emerged was of the mother living the child’s life for her. I am satisfied that the mother believes that everything she does, each parenting decision she makes, is to protect the child and promote her interests. I am equally satisfied that many, many of the mother’s decisions have been adverse to the child’s mental, psychological and physical health.
One area of concern, but by no means the only one, is the ongoing belief that the mother holds that the father may have sexually abused the child. She also holds the belief that the father may have sexually abused one or both of his older daughters. She was quick to concede that there is no evidence at all of the subject child being sexually abused by the father.
The problem for the child is that the mother has never ceased being on the qui vive for any evidence which would support her idea that the child is at risk in the father’s household.
Her actions since the 2012 Orders were made are consistent with this idea.
In August/September 2012 the mother was hospitalised for short periods on five occasions. She did not contact the father and give him the opportunity to care for the child during those periods of time. She arranged for the child to stay with a friend. On reflection, in the witness box, she did not agree that it might have been better to allow the child’s father to care for the child at that time.
On 11 October 2012 the mother took the child, late at night, to have a full genital examination at JH Clinic. Shortly before she did so, the mother had taken some pills that she had found and linen which she said that the father had “stolen from the hospital” in 2004 back to the clinic. She agreed that she would have mentioned the father’s name having an association with the clinic at that time. She said she had returned the pills and the linen simply because she wanted to do the right thing. On balance it seems likely that the mother wished to alert the clinic to wrong-doing by the father before the child was examined.
The genital examination of the child happened after the mother, in the company of the father’s first wife, had sought out a female doctor to undertake this examination. The child had complained of soreness in the vaginal area and the mother, apparently after conducting her own examination, had seen redness and a rash. The notes from the hospital report that there was no basis for considering the child had been abused. The mother said she was told by the examining doctor that the child could have been abused but that this comment did not appear in the notes.
The proposition was put to the mother that she had been disappointed with that outcome. She denied it, “I’m relieved there is nothing. It’s great”. This is entirely inconsistent with her comments about the father previously referred to and statements in her affidavits: [30]
I’m extremely concerned that the report received from the hospital does not accurately state any of the conversation I had either with the doctor or counsellor on 22 October [2012]. Instead the report says that [the child] was constipated.
…
Though it makes me sick to think about this or admit it, I am also worried that [the father] may have previously sexually assaulted [the child] and could continue to do so.
[30] Affidavit of the mother filed 16/04/2015, par 111 and trial affidavit par 116
On the night in question, the doctor who examined the child in the presence of the mother, although she may have been separated by a curtain, had asked her specifically whether the father or her uncle had touched her on the vagina. The child said “no” in relation to her uncle or “I don’t know” in relation to the father. The mother agreed that she interpreted the child saying “don’t know” as a sign of pressure rather than an honest response.
In her interview with the Single Expert at the end of 2015 the mother told her that after the holidays in December 2013 the child was returned to her with a sore vagina and she took her to the GP. She went on to refer to concerns she had about the sexualised conduct of the two older girls with the father. The Single Expert said this:[31]
I asked the mother if she really believed the father was sexually assaulting his daughter. She said: “Yes, I do. [The child] is not saying. She’s been asked, ‘Has anyone touched you?’ She apparently asked the mother to touch her there. ‘[S] asked me to touch her privates. I accused him of incest with [S]. He went into a rage. I understand that. It’s the worst thing in the world.
[31] Single Expert Report dated 15/12/2015, page 8
The Single Expert asked the mother if that occurred before the mother suspected it happened to the subject child. The mother replied that the father had said “[S] might have been molested but it happened under their mother’s care’. And now, with [the child], although it started before we separated”.
The mother’s view was that she still did not know whether the child had been abused by the father when she spoke to the Single Expert but when asked directly had given her opinion, “Yes”. Such evidence is completely inconsistent with the mother’s statement that she was glad the child had said in October 2012 that abuse had not happened.
It is apparent that the mother has a continuing anxious, fear and belief that abuse of the child by the father could have happened and might continue to happen
In September 2014 the mother ceased making the child available for contact with the father. She had developed the belief that the father was taking S to Middle East, despite the fact that the mother believed that S was on the Airport Watch List and she therefore became fearful that the father would also take the subject child. There is an Order restraining both parents, in the 2012 Orders, from removing the child from the Commonwealth of Australia.
The mother repeatedly contacted the father, demanding to be reassured that he was not taking the child to Middle East. The father responded that the mother should simply put the child on the Airport Watch List if she was concerned and start providing the child again for time with him. The mother did not do so. In fact, she conceded in cross-examination that she suspended the time, made no application to the Court, because she wanted the father to write the first affidavit. The mother was asked, “So it was tactical?” She answered, “Yes”.
The mother was apparently oblivious to her own wrong-doing in not complying with the Orders. The most she would say to the father was that there was a “safety issue to be sorted out”. After five months the father made an application to the Court. The mother’s reaction was to move out of her accommodation, put all furniture into storage, remove the child from school, and travel to South Australia via DD Town and BB Town. She referred to this as a ‘road trip’. She did not tell the father what she had done. She made enquiries about legal representation and she advised the school that the child would likely not be returning.
It was an extreme over-reaction to an entirely predictable application by the father. It is apparent from the evidence that the mother was waiting for that application; anticipating it.
The other major area of concern about the mother’s conduct is that after the genital examination of the child, counselling commenced for her at a counselling service. The father was not consulted in advance or told after the event. Much more serious was the mother’s decision to instruct the child not to tell the father that she was going to counselling. The mother did not want the father to find out. She said that she had told the child at home that she was not to tell the father in these terms, “it’s better not to tell your father because your father will not let you do/have the counselling sessions because he doesn’t agree with you having counselling”.
This statement to the child was a lie. The father had not been asked. It was simply the mother’s opinion that if she did ask the father would say no, or at least question her about the purpose of it. This instruction of the mother’s left the child to ensure that she was sufficiently careful and guarded in any time she spent with the father, not to reveal the counselling.
The child had also been told that the father might take her away to Middle East and a “safety plan” had been given to the child in the event of the father attempting that. The mother told the child that if she found herself at an international airport she was to approach someone for help, perhaps to go into a bathroom, find someone in there and tell them what was happening to her.
The risk of instructing a child to behave that way, to approach strangers in a busy airport, should have been obvious. The mother was not directly asked about risk but her answers certainly did not reveal any concerns.
When the child became panicky and fearful about the safety plan, not wanting to approach strangers in that way, the mother said she could not sleep all night, thinking that the child would not do what she had been instructed. For that reason the mother came to the decision, “I won’t take her to see her father until there’s airport watch in place”. The mother did not take any step to have the child put on the Airport Watch List. She simply withheld the child from time with the father.
The mother asserted that she did not think that she had influenced the child to be fearful. The mother has told the child that the father wanted to arrange marriages for her sister and that they must marry within his religion. She told the child that the father wanted to arrange a marriage for her but that that was not his choice to make.
She stopped taking the child because she said the child had said that she no longer wanted to see the father and yet I am confident that the mother believes that she has not influenced the child’s wishes.
In October 2012 at the genital examination, the mother says that after the examining doctor told her “I think [the child] has been molested” but then explained she was not an expert, that the mother was crying and the child could see her cry.
The mother was very confidant to reject the Single Expert’s conclusion that the child’s statements to her about not wanting to see the father were at odd with her true feelings, “I totally, absolutely, 100 per cent, reject that”. She also was quick to say that she did not believe that the child could not be independent when “she’s enmeshed with her mother”.
Certainly there was no evidence of the mother having sought any professional assistance to understand what was being said about her which was so much at odds with her own view of providing good care for the child and having full capacity to meet her needs.
The prospect of time between the child and the father being easily restored whilst ever she lives with her mother, is in my view, nil.
The mother was asked whether she had sought professional assistance to understand “enmeshment” referred to by the Single Expert as the central problem in the relationship between the child and the mother. The mother’s response was that the child had been “over clingy because of the stress of the father”.
There was more than one occasion where the mother was asked whether she thought she may too be part of the child’s problem; the problem being the diagnosis of anxiety disorders.[32] The Single Expert also referred to the mother having “a way of relating which is not in the child’s best interest”.
[32] Single Expert Report dated 15/12/2015, page 45(j)
Right at the conclusion of her cross-examination the mother conceded that there may have been something about her parenting which the Single Expert saw which she had not seen herself.
I accept the submission on behalf of counsel for the mother that there were moments when the mother appeared to understand that she needed to change the way she was doing things.
I take into account that the mother has previously been through a contested hearing and has had the benefit of reading the reasons for judgment following that trial. Her Honour in those proceedings referred to the father’s assertion that the mother failed to facilitate the child’s relationship with him. At that time, her Honour was satisfied that the mother had taken all reasonable steps to do so and went onto say “in my assessment, the mother can be trusted to encourage and facilitate [the child’s] relationship with her father and sisters”.[33]
[33]Malik & Malik & Anor [2012] FamCA 165, par 94
The mother must have understood that this was a factor which weighed in favour of the child remaining in her care at that time. I also take into account the very clearly expressed concerns of the Single Expert in her report released in mid-December 2015, which during the course of her oral evidence, the mother simply rejected as “wrong”.
Overall, I came to the conclusion that the mother loves the child intensely; indeed that there is no one else of special significance in the mother’s life, so the whole of her emotional focus is on the child.
Several of the orders sought by the mother[34] provided for the child to make decisions about time and communication with the father. For instance, “the child is to be given the decision to contact her Father, Mother or Sisters on any day between 6pm - 7pm” (order 7) and “in the event the child chooses not to phone her Father she is to send a text/email to the father each Wednesday” (order 12).The proposal that the father be restrained from contacting the child at school unless the child agrees to the contact, including attendance at activities to which parents were invited, border on the absurd (order 23).
[34] Amended Response filed 14/03/2016
Not only is this likely to be destructive of the relationship between the child and the father, when she knows that the mother does not want her spending time with the father for perceived reasons of safety, but that the development of the child herself will be adversely affected by being handed responsibility for decisions which should be made by parents; not the child.
The mother appeared to be bewildered when I raised with her the fact that she had not complied with Court Orders after September 2014 and had taken no step to make her own application to vary them if she considered there was a need to do so, “I didn’t understand I was breaching the orders”.
The mother appears to lack the capacity to step back from her situation and wonder how her actions would be perceived and whether there is another way to go about things. She appears anxious and acts impulsively. She tells half-truths and believes that and feels justified because her cause is righteous.
There is no basis, in my view, for assuming that the mother will behave differently in future.
Associate Professor CC, Immunologist
Prof CC was not cross-examined.
The parties came to a common position that they were unable to share parental responsibility and further that the parent to whom parental responsibility was allocated would make the decision about whether or not to immunise the child.
Ms EE: Support Worker Women and Children’s refuge
Ms EE was unavailable for cross-examination and her affidavit was therefore withdrawn and not read.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Parental Responsibility
The parents agree that they are unable to share parental responsibility.
That Order was made in the 2012 Orders and has not been productive. There has been no consultation between the parents with a view to reaching compromise and agreed positions.
The parents each ask for an order for sole parental responsibility.
The Single Expert recommended that the parents share parental responsibility. No doubt because it would be a benefit to the child to know that her parents were together making decisions about her long-term welfare.
However, I have decided not to implement that recommendation in circumstances where there is little prospect of the reduction in animosity and improvement in communication and a willingness to trust each other with the child’s long-term welfare.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The matter which has brought this family back to Court is the father’s view that his relationship with the child was under threat and needed protection.
Since the father has spent no unsupervised time with the child since September 2014; almost two years. For the last year he has had only supervised time for short periods, weekly, and most recently, a weekly phone call.
The relationship between the child and the father, on the face of it, is at breaking point. The child ignoring the father, behaving rudely, appearing sad and resistant to spending time with him.
The reality identified by the Single Expert is that the child is yearning for a restoration of the relationship with the father, but emotionally it is impossible for her to release that emotion because she is enmeshed with the mother’s world view of the father as a ‘bad father’.
The child has a meaningful relationship with the mother. The mother provides her day-to-day needs, but the mother is constricting the child’s world and cutting her off from her relationship with the father.
The Single Expert says this, “… despite being mostly in the mother’s care, the child was miserable, unwell and maladjusted”.[35]
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
[35] Single Expert Report dated 15/12/2015, page 41
Harm has been done to this child. She has been diagnosed as an “anxious girl with Separation Anxiety, Social Anxiety and Generalised Anxiety Disorders”. Her present relationship with the mother is “enmeshed” and “unhealthy”.[36]
[36] Single Expert Report dated 15/12/2015, page 45(j)
The Single Expert considers that although the child’s reports[37] suggest the she is doing well enough at school, her view is that the child is unable to learn and achieve at the level at which she is really capable. The Single Expert described the child as a “really clever, very intelligent child”.
[37] Exhibit 11 and 20
Psychological harm has been done and will continue unless there is change in the child’s life.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
In interview with the Single Expert, the child was directly asked what she thought should happen as a result of the Family Court proceedings. The child said, “to live with mum”.[38] She went on to say that she did not like spending time with the father but she did like the supervisor.
[38] Single Expert Report dated 15/12/2015, page 21
The child also said, and at this point she expressed more emotion than at any other reported point, “I don’t feel part of the family [meaning the paternal family]”. When the Single Expert pressed her, “so you want to be part of the family”, the child became quiet, tears appeared in her eyes and she whispered, “I don’t know” in response to the question, “what could the family do to make you feel more part of it?”
It would be fair to say that the child was quite negative about the father, Ms KG, and indirectly, her two older sisters.
She was strongly positive about living with the mother. When asked to nominate three magic wishes, they were all about herself and the mother, “for me and Mum to live at the beach … for me and Mum to fly together and go into a rainbow and travel … for me and Mum to turn into birds and go anywhere in the world”.[39]
[39] Single Expert Report dated 15/12/2015, page 20
The child is a 10 year old girl. Her parents separated when she was four years old.
Since at least October 2012 there has been a relentless focus by the mother on her safety, with particular reference to risk in the father’s household. She has had one full genital examination. She was thereafter referred to counselling for body safety which went on for more than a year. She is currently fearful about the father hitting her, hurting her, shouting at her, and being angry with her; although unable to remember any specific occasions where such things have happened.
I accept the evidence of the Single Expert that the child has taken on the mother’s world view and is enmeshed; that that relationship is unhealthy and the child needs release from that.
On that basis, I give no weight to the child’s expressed views.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The child has had very important relationships with the paternal family. She was particularly close to her late Uncle M who died in 2013. She loved her two older sisters and all three girls were distressed over the parents’ separation early in 2010.
Unfortunately, those relationships are strained. The older girls, although 18 and 16 years old, do not have sufficient maturity to understand that the child’s coldness, standoffishness, rudeness, sarcasm, eye-rolling, and deliberate rejection of special celebrations put on for her benefit is not deliberate insult by her, but a reflection of her situation.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
The parents had Orders in March 2012 which would have allowed substantial and significant time with the father and members of his household and primary residence with the mother.
There is a distance between the two households of about 70 kilometres, which is tiring but not impossible.
In September 2014 the mother began withholding the child from contact with the father. The father was unable to communicate with the mother about the topic. He commenced proceedings in March 2015 after five months of no contact.
The response of the mother to that application being made, although she anticipated that it would be, was to take the child out of school, store her household possessions, terminate the lease on her accommodation, and go on what she called a ‘road trip’ to Adelaide via BB Town with the child. The child missed three weeks of school and they thereafter returned to a different house.
The father has tolerated a year of limited, supervised visits with the child who has become increasingly unreachable.
The father described his last visit with the child, in mid-September 2014, when the child happily told him she loved him and was looking forward to seeing him next time. As he described it, “that child has disappeared” and he hardly “knows the child he sees now”.
Nevertheless the father persevered in his attempts to spend time and communicate with the child, and is asking for an order for residence.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The mother repeatedly referred to being “in strained financial circumstances”.
The father has always paid child support as assessed and currently pays $1400 per month.
The mother is not in the paid workforce and discloses only Centrelink income to support herself and the child in addition to the child maintenance.
Orders were made in 2013 in the Federal Circuit Court in Parramatta for lump sum spousal maintenance for the mother for a three year period, with a notation as follows, “the [mother] will use her best endeavours during the next three years to enter the workforce”.[40]
[40] Orders made 29 May 2013
The mother has not entered the workforce, although she says she is now beginning to start up an internet business from home and has been looking for work.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The impact on the child of a change of residence will be considerable. She is anxiously attached to both her parents as assessed by the Single Expert and fearful of the father as a result of events over the last two to four years in the mother’s household.
She is likely to be shocked and even traumatised by leaving the mother to live with the father, especially with an initial period of not seeing the mother at all.
I accept the comment of the Single Expert that “pain now for gain later” is the only way to look at a change of residence for this child.
The benefit to the child will be the restoration of her relationship with the father and, to an important but lesser extent, with Ms KG, AM and her two older sisters, Ms T and S. The child’s need to feel part of that family is intense.
The other change will be of school. The father proposes that the child attend the same school as her older sisters have; S being her second last year of secondary education there. The child has friends and interests in the local area in Newcastle and it will be a wrench to leave that school.
The recommendation of the Single Expert for weekdays with the mother and three night weekends with the father was based on two things: firstly the need for the child to have a realistic view of the each parent by having sufficient time with them; and secondly because it would maintain the stability of her current school.
However, it is apparent from the mother’s application and her evidence that she wishes to be free to move within 70 kilometres of the father’s home with the child, which would enable her to live in Sydney, as well as further south of Newcastle. It is highly likely that the child would change schools sooner or later if she remained in the mother’s care.
The practical difficulty and expense of a child spending time with and communicating with a parent
The mother has asserted that it has been difficult to travel with the child for supervised time each week with the father, too expensive to regularly come by car because of petrol and maintenance costs, long and tiring, although fun to come by bus and train.
Whilst I do not consider that the mother was actively trying to make the child suffer by travelling on public transport, I do consider that she was trying to make the point that it was too much for the child to do all of this travelling.
In the event that the child lives with the father, the mother may remain living where she is, or could move closer. The mother’s evidence was that it would be expensive for her to move to the Central Coast but in the event that she does re-enter the workforce, it would be possible. That will be a matter for the mother.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
This is a very significant consideration.
The mother has deficits in her capacity to meet the child’s needs. The child, particularly in 2015, missed a lot of school. The child’s teacher had a word to the mother about allowing the child to do more things for herself.
The mother herself recognised that she has tried to solve the child’s perceived problems with the father, instead of letting her live her own life.
The mother has failed to understand the extent to which she has caused the child psychological damage and denied her the opportunity to naturally express the love and affection she really feels for the father and the father’s household. In her attempts to keep the child safe, the mother has disrupted the child’s life emotionally and educationally.
The father has the capacity to meet the needs of the child. His two older daughters are described in this way by the Single Expert, “it was clear from his success with the older girls that they were doing well at school. They were polite and articulate young women who had ambitions to study further when they finish school, which they enjoyed”.
Since then Ms T has gone onto university. Ms T acknowledged that she had behaved badly at around age 16, had wanted a particular boyfriend which the father refused. She had then run away to her mother’s home, her mother allowing the relationship with the boyfriend, but returned a year later. She looks back on it with greater maturity, understanding that she had been wilful.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The child is a ten year old girl.
The father was born in Middle East and is a health professional.
The mother was born in Australia, she is of different religion than the father and is a health care professional with a profoundly different care emphasis .
The child has two very different parents. She is not particularly mature but she is very bright, possible underachieving at school. She is anxious and uncertain about friendships and longs to be included at home and in school.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The Single Expert reports the father values education highly and a high standard of hygiene in the care of the child. There was no enmeshment in their relationship. He is concerned about her health.
The Single Expert expressed the view that the mother does not value the part played by the father in the child’s life; perhaps because the mother was raised without a father herself. She has considered relocation on two occasions to places which would make it difficult for the child to see the father.
The child received psychological therapy for 18 months but there was no focus on the child’s adjustment to contact with the father.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
There have been no family violence orders.
The mother alleged in the hearing in 2011 and again in these proceedings that the father has raped her, and that his late brother attacked her, that the father is a violent man, and that their relationship was characterised by violence.
The mother agreed that she had been fulsomely positive about the father when she swore an affidavit in support of his having the custody of his two older daughters in proceedings involving his first wife.
The mother is easily able to make inconsistent statements without acknowledging the inconsistency. There is no evidence before me that the father has been violent to the mother, to the child, or to any other person. Ms KG gave evidence that the father not only had not been violent on any occasion, but other than occasionally getting a bit excited, had not even raised his voice.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
The mother did not comply with the Orders made in March 2012 after September 2014. She simply stopped the child from seeing the father.
Her expressed reason was because she feared that the father was going to take the child to Middle East. There is no apparent basis for that fear; simply an expressed belief by the mother that the father might take S and therefore might take the child during that school holiday period.
At the conclusion of the school holiday period in September/October 2014, when it was quite obvious that the father was in Australia again, having travelled to Middle East himself, the mother did not allow contact to resume. She would not communicate on the topic. She did not make an application. Looking back she could see very little wrong with what she had done. She took the child away from NSW when the father made an application.
The chances of the mother being strictly compliant in future are very low. The consequence is that there would likely be further applications for contravention or again for residence almost immediately. However, if the child is living with the father, I am satisfied that despite his extreme dislike for the mother and frustration over events of recent years, he has an independent knowledge, understanding, and appreciation of the importance of the relationship for the child with the mother.
I also accept that he would be able to explain to his two older children how important it is for the family to do what the Single Expert was talking about which was simply to be themselves, to display what was on offer in terms of affectionate family life and not to criticise the mother or blame the child in any way for how things have been over recent years.
Any other fact or circumstance that the court thinks is relevant
There has been an ongoing dispute between the parents since the child was born over immunisation.
The father concedes that he signed an exemption application because of the mother’s strongly held views that the child should not be immunised. The father’s own view is that it is important for the child to be immunised and he had hoped during the relationship that the mother would change her mind. He is now concerned that because the child has asthma and allergic rhinitis there is a heightened need for immunisation.
The Single Expert also expressed views about the benefits of immunisation.
On the basis of what was discussed with the parties, if the child is living with the father, it is entirely likely that he will choose to bring her immunisations up to date; that will be a matter for his discretion.
Conclusion
Having considered the evidence in the way set out above, I have concluded that the child should live with the father and that he should have sole parental responsibility for decision-making.
There must be a period of time when the child does not see the mother at all. A time which enables her to have extensive exposure to the father and the paternal family to remind herself of how things used to be and to weaken the enmeshment which has led her to become fearful of the father for no reason based in fact.
Following that a few occasions of day only time and thereafter full alternate weekends and holiday periods.
It will be hard for the child, she will miss her mother, but nevertheless I am confident there is a long-term benefit for her in her psychological development.
There will also be a change of school and an Order has been made that the father, in consultation with the principals of the child’s current school and the child’s proposed school, can make a decision about when the change of enrolment takes place. There may be a short period when the child is out of school, but that will be a matter for the father.
When time with the mother resumes there must be consequences for failing to return the child after she has spent time with the father, if that were to happen, and it should be the suspension of orders for time until further order of the Court. The onus would be on the mother to bring the matter back to Court if the parties were unable to agree on a way forward.
In making this order I take into account the evidence of the mother that after she ceased making the child available in September 2014 she did not make an application to vary the orders because “I wanted [Mr A Malik] to write the first affidavit”. It was a tactical decision and the mother conceded as much in cross examination.
The Single Expert suggested that suspension be for three months on each occasion when the child was not returned. However, I consider that this has the potential to be far too emotionally and educationally disruptive to the child.
There will be also be provision for the child to obtain psychological assistance in helping her to adjust to the change of residence and to the change in thinking that will be involved in a transfer between the two households.
To assist in that process for the child I have made an order for Ms KG to be able to read the report of the Single Expert. I consider that Ms KG will assist the child in an empathetic way during the therapeutic intervention.
There is a restraint on overseas travel for 12 months. The child has been frightened by being told by her mother that the father might take the child to Middle East and not bring her back. The child needs time to regain her trust and confidence in her father before there are overseas trips. I am satisfied that the father has made his home in Australia and also that there will likely be trips for the child to Middle East in the future.
The mother greatly loves her daughter and is likely to be confronted and distressed by this outcome. The mother will have a choice to make as to whether to support the change and conceal her own feelings from the child in order to help her to adjust. If she does so the child will receive the full benefit of having a meaningful relationship with both her parents which will promote her healthy development and academic progress.
Orders are made accordingly.
I certify that the preceding three hundred and twenty five (325) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 10 June 2016.
Associate:
Date: 8 June 2016
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