Mandes and Bamford & Anor
[2014] FamCA 190
FAMILY COURT OF AUSTRALIA
| MANDES & BAMFORD AND ANOR | [2014] FamCA 190 |
| FAMILY LAW – CHILDREN – Best Interests – with whom the children shall live and spend time – father contemplated the child suffered injuries due to the mother’s physical abuse or failure to provide adequate supervision of the child – father alleged the child is underweight because the mother failed to provide her with proper nutrition – mother alleged the father perpetrated family violence – father lacks insight into the child’s emotional needs – no unacceptable risk of harm to the child in the mother’s care – child’s superficial injuries and low weight satisfactorily explained – child to live with the mother and spend time with the father – application by the intervener for orders authorising supervision of the mother’s care of the child for 18 months dismissed – intervener to supervise changeovers for a six months FAMILY LAW – CHILDREN – Parental responsibility – presumption of equal shared parental responsibility does not apply because family violence perpetrated by the father – parties unable to communicate effectively – hostility between the parties during changeover – intervener did not seek to share in parental responsibility for the child – mother to have sole parental responsibility FAMILY LAW – INJUNCTIONS – Maternal grandfather’s prosecution for sexual offences – mother restrained from allowing the child to be in the presence of the maternal grandfather unless personally supervised by her |
| Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 60B, 61B, 61DA, 64B, 65D, 65AA, 65DAA, 65DAC, 65DAE, 67ZC, 68B, 69ZK, 114 Children and Young Persons (Care and Protection) Act 1998 (NSW) |
Browne v Dunn (1893) 6 R 67
| Goode & Goode (2006) FLC 93-286 | ||
| APPLICANT: | Ms Mandes | |
| RESPONDENT: | Mr Banford |
| INTERVENER: | Secretary, NSW Department of Family & Community Services |
| FILE NUMBER: | NCC | 1425 | of | 2012 |
| DATE DELIVERED: | 28 March 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 18, 19, 20, 21, & 24 February 2014, 24 & 25 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr B Kelly |
| SOLICITOR FOR THE APPLICANT: | Hunter Family Law Centre Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr D Dura |
| SOLICITOR FOR THE RESPONDENT: | Armstrong Legal |
| COUNSEL FOR THE INTERVENER: | Mr J Harris |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitor’s Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr T Bates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Peter Hamilton & Associates |
Orders
All former orders relating to the child H, born … 2011, (“the child”) are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The parties shall take all reasonable steps to ensure the child spends time with the father as follows, or as otherwise agreed in writing:
(a)Until the child commences school:
(i)During school terms, each alternate weekend from 4.00 pm Friday until 6.00 pm Sunday, commencing on Friday 4 April 2014 this term, and otherwise on the first Friday of each new term;
(ii)During school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year; and
(iii)During the Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
(b)Upon the child’s commencement of school:
(i)During school terms, each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday, commencing on the first Friday of each new term;
(ii)During school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year; and
(iii)During the Christmas school holidays, for the first half of such holidays in the years when the holidays commence in an even numbered year and for the second half of such holidays in the years when the holidays commence in an odd numbered year.
Orders 4(a)(iii) and 4(b)(iii) hereof are suspended from 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years.
For the purposes of implementation of Orders 4 and 5 hereof, the school holidays are deemed to commence at 6.00 pm on the last day of school term, the holidays are deemed to end at 6.00 pm on the last day preceding the day upon which the child is due to return to school, and the mid point is the day and time halfway between those first and last days.
Unless otherwise agreed in writing, for the purpose of implementing Order 4(a)(i) hereof:
(a) Up to and including Sunday 21 September 2014:
(i)The mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent by the child with the father at the intervener’s Town I Community Services Centre, and the exchange of the child shall be supervised by the intervener’s delegate; and
(ii)The father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent by the child with the father outside T Suburb Police Station.
(b) Thereafter:
(i)The mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent by the child with the father outside Q Suburb Police Station; and
(ii)The father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent by the child with the father outside Town U Police Station.
Unless otherwise agreed in writing, for the purpose of implementing Orders 4(a)(ii), 4(a)(iii), 4(b), and 5 hereof:
(a)The mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent by the child with the father outside Q Suburb Police Station; and
(b)The father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent by the child with the father outside Town U Police Station.
Unless otherwise agreed in writing, the mother and father shall take all reasonable steps to ensure the child communicates privately by telephone with:
(a)The father each Wednesday when the child is living with the mother, at 6.00 pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time;
(b)The mother each Wednesday when the child is spending time with the father during school holiday periods, at 6.00 pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time; and
(c)The parent with whom she is not then staying, on the child’s birthdays, at 6.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.
The mother and father are restrained from causing or permitting the infliction of corporal punishment upon the child.
The mother and father are restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
The mother shall authorise and request the principal of any pre-school or school attended by the child to provide to the father, at the father’s expense, copies of all reports and photograph order forms relating to the child.
The mother and father shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
The mother is restrained from causing or permitting the child to be in the physical presence of the maternal grandfather (Mr K) unless personally supervised by her.
In the event of either the mother or father notifying either the police or a prescribed child welfare authority that the child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter:
(a)Provide to the person to whom the notification is made a copy of these orders; and
(b)Cause the intervener to be notified of the allegation.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
The Application-Contravention filed by the father on 20 February 2012 is re-listed before the Court for further directions at 9.30 am on Monday, 28 April 2014.
Any and all other outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mandes & Bamford and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1425 of 2012
| Ms Mandes |
Applicant
And
| Mr Bamford |
Respondent
And
| Secretary, NSW Department of Family & Community Services |
Intervener
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings concern the future of a child not yet three years of age.
The applicant mother and respondent father have been locked in controversy about the child since almost the moment of their separation in April 2012.
The heat generated by the parents’ personal and litigious conflict attracted the attention of the Secretary of the NSW Department of Family and Community Services, who eventually intervened in the proceedings (“the intervener”), and necessitated the appointment of an Independent Children’s Lawyer to represent the child’s interests dispassionately.
The central issue was the determination of whether the mother posed a danger to the child’s health and safety. It was common ground the child sustained numerous injuries, which the father believed were either the result of the mother’s physical abuse of the child or alternatively the result of accidents which should have been prevented by the mother’s more diligent supervision. It was also common ground the child has low body weight, which the father believed was caused by the mother’s failure to provide her with sufficient food or proper nutrition.
The mother denied inflicting physical abuse upon the child and refuted all allegations of her sub-standard care and supervision of the child. She contended the father’s allegations against her were maliciously manipulative, intended to ensure the child lived with him and to vest him with control over the child’s relationship with her.
History
The parties began their relationship in about September 2008. They did not marry and finally separated in April 2012.
The child was born in 2011 and is now approaching three years of age.
The child was only 10 months of age at the time of separation and she remained living with the mother, who was still breastfeeding her.
The parties disagreed over the amount of time the child should spend with the father. In late May 2012 the father retained the child in his care. The father alleged the mother surrendered the child to him, but the mother alleged the father refused to return the child after a short visit.
The mother commenced the proceedings on 31 May 2012, seeking a recovery order against the father in relation to the child. The recovery order was made by the Federal Magistrates Court (as the Federal Circuit Court then was) on an ex parte basis. The Court also made an interim order for the child to live with the mother and the proceedings were adjourned for about two weeks.
The child was recovered from the father and delivered into the care of the mother pursuant to the interim orders.
On 13 June 2012, further interim orders were made between the parties with their consent. The child was ordered to live with the mother and spend frequent short amounts of time with the father.
The father filed a Form 4 Notice of Child Abuse on 13 September 2012 alleging the mother’s abuse of the child in the form of “assault by way of deliberate or negligent mistreatment”.
Notwithstanding the father’s allegation against and his concern about the mother, the parties agreed upon further orders a week later. On 20 September 2012 more interim orders were made with the parties’ consent providing for the child to live with the mother and spend some expanded time with the father.
In November 2012, the father procured a report about the child from a consultant paediatrician, Dr C, because of his concern about the child’s health and safety. The paediatrician endorsed the father’s concerns for the child in the mother’s care and the paediatrician’s report was the catalyst for the Court’s review of the existing interim parenting orders at the father’s request.
The Court acceded to the father’s request and, apparently in reliance upon the efficacy of Dr C’s evidence, the Court made fresh interim orders on 21 November 2012 reversing the child’s residence. The child was ordered to live with the father and have “no contact” with the mother. The proceedings were simultaneously transferred to this Court because of the allegations about the child’s physical abuse.
Contemporaneously, the Family Report prepared by the Family Consultant was published to the parties. It raised doubts about the reliability of Dr C’s evidence in various respects and so the interim orders were re-considered by this Court shortly following the transfer of the proceedings. On 19 December 2012, orders were made discharging the former orders and restoring the child’s residence with the mother. The orders furthermore provided for the child to spend time with the father in the same manner as had previously been agreed between the parties in September 2012.
The proceedings were initially listed for final trial in March 2013, but the trial was later pushed back to September 2013 due to the appointment of another single expert at the request of the father.
The fresh trial in September 2013 was vacated because of the child’s admission to hospital on the preceding weekend and the mother needed to be at the hospital with the child.
Only weeks afterwards, in October 2013, the intervener took the child into care and commenced parallel proceedings in relation to the child before the Children’s Court of NSW, which temporarily deprived this Court of jurisdiction (s 69ZK). Those proceedings were discontinued in November 2013, the intervener instead intervened as a party in these proceedings, and the child was returned to the care of the mother.
The proceedings were finally heard in February 2014 but, just prior to the delivery of judgment, the father successfully sought leave to re-open his case and adduce further evidence. The trial was therefore concluded in March 2014.
Proposal and primary evidence of mother
The mother pressed for the orders set out within her Amended Initiating Application filed on 24 December 2012. She wanted the child to live with her and for her to have sole parental responsibility for the child.
The mother proposed that the child only spend supervised time with the father for two hours each week at a contact centre, in the event the father made “unfounded allegations of the mother intentionally harming the child”. Otherwise, she accepted the child could spend unsupervised time with the father on alternate weekends and during school holiday periods.
The mother relied upon:
(a)Her affidavit filed on 8 January 2014;
(b)The affidavit of Ms L filed on 21 February 2013; and
(c)The affidavit of Mr M filed on 22 February 2013.
She abandoned reliance upon the affidavit of her former partner, Mr N, filed on 18 December 2012.
Proposal and primary evidence of father
The father pressed for the orders set out within his Amended Response filed on 31 January 2013. He proposed that the child live with him and that he have sole parental responsibility for her.
He further proposed that the child only spend supervised time with the mother for two hours each week at a contact centre.
He additionally proposed an injunction restraining the mother from allowing the child any contact with either Mr N or the maternal grandfather.
The father relied upon:
(a)His two affidavits filed on 2 August 2013 and 10 January 2014;
(b)The affidavit of his partner, Ms O, filed on 2 August 2013;
(c)The affidavit of the paternal grandmother, Ms V, filed on 2 August 2013; and
(d)The affidavit of Dr C filed on 21 November 2012.
At the commencement of the trial the father foreshadowed an application to rely upon an additional unfiled affidavit of another witness, only recently sworn and circulated to the other parties, but the application was not thereafter made.
Upon leave being granted to re-open his case, the father adduced in evidence his third affidavit filed on 21 March 2014. He was not cross-examined on that evidence and I accept it as correct.
Proposal and primary evidence of intervener
The intervener filed a Response on 16 January 2014 setting out two alternative suites of proposed orders. The intervener ultimately proposed the first alternative, because he submitted the mother did not constitute an unacceptable risk of harm to the child.
Accordingly, the intervener proposed that the child live with the mother and that the mother have sole parental responsibility for her, subject to the mother’s compliance with the intervener’s supervision and directions for a period of 18 months.
The intervener proposed that the child spend unsupervised time with the father on alternate weekends and during school holiday periods.
The intervener otherwise proposed a raft of restraints upon the parties’ conduct.
The intervener relied upon:
(a)The two affidavits of the intervener’s caseworker, Ms W, filed on 4 November 2013 and 10 January 2014; and
(b)The affidavit of another caseworker, Ms X, filed on 10 January 2014.
The intervener was denied leave to rely upon the affidavit of Ms Y filed on 10 January 2014, since she was not available for cross-examination.
The principal caseworker, Ms W, affirmed an additional affidavit on 20 March 2014, which was not filed but rather annexed to the father’s third affidavit filed on 21 March 2014. Ms W’s affidavit therefore formed part of the additional evidence adduced when the father’s case was re-opened.
None of the intervener’s proposals changed as a consequence of the fresh evidence adduced.
Proposal of independent children’s lawyer
The Independent Children’s Lawyer tendered a minute of orders he proposed at the commencement of final submissions,[1] and the proposal was not revised after the father re-opened his case and adduced fresh evidence.
[1] Exhibit ICL9
The Independent Children’s Lawyer proposed that the child live with the mother and that the mother have sole parental responsibility for her. He further proposed that the child spend unsupervised time with the father on alternate weekends, which would expand to include some time during school holiday after the elapse of 18 months.
Additional evidence
The additional evidence placed before the Court included:
(a)The Family Report, dated 28 November 2012, prepared by the Family Consultant;
(b)The Magellan Report, dated 23 January 2013, furnished to the Court by the intervener;
(c)The affidavit of the single expert witness, Professor A, a forensic psychologist, sworn on 17 April 2013, together with her earlier report about the mother dated 4 November 2011;[2]
(d)The three reports of the single expert witness, Dr B, a consultant paediatrician, dated 10 January 2013, 14 March 2013, and 14 February 2014;[3] and
(e)Many other documentary exhibits.
[2] Exhibit F3
[3] Exhibit ICL5
The Family Consultant and Professor A were cross-examined.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Allegations of child abuse and/or neglect
The father’s concerns about the mother’s parenting capacity sprang from two sources – the existence of bruising and abrasions on the child’s body from time to time and the child’s low weight. The evidence about both of those issues deserves careful and separate analysis.
Injuries through alleged physical abuse or failure to supervise
As earlier mentioned, the Form 4 Notice of Child Abuse filed by the father in September 2012 recited that bruising on the child’s body until that point in time was attributable to “assault by way of deliberate or negligent mistreatment”, which clearly implied the father’s contemplation that the bruises were either caused by the mother’s physical abuse of, or her failure to properly supervise, the child.
The father was unable to allege actual physical abuse of the child by the mother since there was no evidentiary foundation for it. He was not present to observe the manner in which the child sustained the injuries, he was not privy to any independent witnesses’ accounts, and he was devoid of an expert opinion about it. He foresaw the possibility of abuse but was unable to positively assert it.
In November 2012, when the father discussed the issue with the Family Consultant, he deliberately drew back from alleging the child’s injuries were “intentionally inflicted by an adult”. Instead, he said he was unsure how the injuries were caused and thought she might have “fallen off a bed or a ledge”.[4]
[4] Family Report, para 167
In October 2013, the father told the intervener’s caseworker:[5]
[The mother] doesn’t watch her [the child] properly
[5] Ms W’s first affidavit, para 36
In November 2013, when the father and Ms O were interviewed by the intervener’s caseworkers, Ms O said in the father’s presence and without his demurrer:[6]
Oh and for the record we have never said [the mother] has physically abuses (sic) [the child]
[6] Ms W’s second affidavit, para 22, Annexure KW-1 (page 33/72)
Ms O confirmed in cross-examination that she and the paternal family considered the child sustained the bruises through poor supervision by the mother. Although the father said in cross-examination he was disinclined to accept the mother’s explanations for the child’s injuries from time to time, he grudgingly conceded the proposition that young children sometimes hurt themselves and that it was “possible” the explanations proffered by the mother were reasonable.
No allegation of physical abuse has ever been made against the mother since those comments were made in October and November 2013.
None of the available expert evidence reasonably established the child’s injuries were due to physical abuse.
No suggestion of the child’s physical abuse was put directly to the mother in cross-examination for her acceptance or repudiation, as should have occurred if such a direct allegation was to be pursued (see Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 387-388; Browne v Dunn (1893) 6 R 67).
No submission was ever ultimately made that the mother had physically abused the child.
Save for evidence adduced by the father from Dr C, which is separately addressed later in these reasons, this litigation was conducted by the father on the basis that all of the injuries sustained by the child were probably sustained accidentally as a consequence of the mother’s inadequate supervision of the child’s activities.
In that context, the evidence as to the child’s injuries was as follows.
6 May 2012
The father and paternal grandmother both alleged the child had a bruise on her head on 6 May 2012,[7] but neither the father nor paternal grandmother made any mention of it in their earlier narratives about events around that date.[8] Nor did the father report the injury to the paediatricians who comprehensively reviewed the child and her history in September 2013 at the intervener’s request.[9]
[7] Father’s first affidavit, para 157; Paternal grandmother’s affidavit, para 36
[8] Father’s first affidavit, paras 44-45; Paternal grandmother’s affidavit, para 14
[9] Ms W’s first affidavit, para 19, Annexure B (pages 23-24)
The father and paternal grandmother were not asked questions about those aspects of the evidence.
The mother made no mention of the child being injured on or about that date and she was not cross-examined about it either.
Ms O was, however, cross-examined on the issue. Even though she made no mention of it in her affidavit,[10] she said the child did have small bruises on her forehead and cheek on that occasion. She had earlier said much the same to the Family Consultant.[11]
[10] Ms O’s affidavit, para 7
[11] Family Report, para 97
Significantly, Ms O said the child was just learning to crawl at that stage and she considered the bruises were “normal childhood bruises”, which she disregarded.
The child probably did suffer from bruising on her head on 6 May 2012, but it was entirely innocuous.
4 July 2012
The child had bruising and an abrasion on her head on 4 July 2012 when she was delivered by the mother into the care of the father.
The evidence is inconsistent about whether the father saw the injury immediately he collected the child, as he told Ms O,[12] or only after he arrived home with the child, as he deposed in his affidavit.[13]
[12] Ms O’s affidavit, paras 32-33
[13] Father’s first affidavit, paras 80, 155
In any event, the father sent a text message to the mother inquiring about the origin of the injury. The mother replied by text message explaining the child was “crawling and bumped her head”. She gave the intervener’s caseworkers the same explanation[14] and later gave the same explanation in her affidavit.[15] Ms O’s earlier assertion that the mother refused to explain the case to the father was incorrect.[16]
[14] Magellan Report, page 4
[15] Father’s first affidavit, paras 80, 155; Mother’s affidavit, para 77, Annexure B (page 52)
[16] Family Report, para 115
The child did not apparently require any medical treatment, as none was sought by either the mother or father.
26 August 2012
The child had a bruise on her head on 26 August 2012 when delivered by the mother into the care of the father. The mother explained the child had again bumped her head while crawling. So much was uncontentious.
This event was, however, of great significance because of a dispute about whether the child also had bruising on her right forearm. The father alleged it but the mother denied it. The evidence they each adduced was irreconcilable.
The mother denied the child exhibited any bruising at all on her arms when the child was delivered into the care of the father. She was corroborated by two witnesses – Ms L and Mr M.
Conversely, the father alleged the child did have bruising on her right forearm. He was corroborated by both Ms O and the paternal grandmother.
The father was so concerned about the child’s bruising he photographed it on his mobile telephone and sent the picture to the mother demanding an explanation for it. The image is graphic and the blemishes on the child’s forearm are unmistakeable.[17]
[17] Mother’s affidavit, Annexure C (page 54)
The mother was alarmed by the apparent bruising on the child’s forearm and immediately sent a text message back to the father inquiring about it. The father replied that the bruising on her arm was present when he collected her.
The child was returned to the mother’s care some hours later on the same evening. The mother said the child then had no bruising on her forearm and took a photograph to verify it. She then immediately sent the photograph to the father to prove the absence of bruising on her arm.[18] The absence of bruising on the child’s arm at that time was again corroborated by Ms L and Mr M.
[18] Mother’s affidavit, para 97, Annexure D (page 56)
Two days later the mother took the child to a health care nurse, who confirmed the absence of any bruising on the child’s arm and only the existence of a small bruise on her forehead.[19] The nurse’s clinical notes corroborate the mother’s version of events.[20] Nevertheless, about a week afterwards, the father attended upon police to report the bruising he had observed on the child.[21]
[19] Mother’s affidavit, para 98
[20] Exhibit ICL1; Family Report, para 134
[21] Family Report, para 135
Despite the time devoted to the issue by the parties, the father ultimately submitted it was unnecessary to determine the factual conflict. I do not accept that submission. Its determination has an important influence on findings about the parties’ insight and their capacity to meet the emotional needs of the child. It also bears upon the reliability of the parties and their witnesses in respect of many other factual conflicts.
I accept the evidence of the mother and her witnesses in preference to the father and his witnesses.
Importantly, the evidence of the mother, Ms L, and Mr M was credible and convincing. Their veracity was not disturbed in the slightest by any cross-examination on the issue. There were some slight discrepancies in their evidence in respect of peripheral details, but none as would undermine the strength of their evidence.
By comparison, the father, Ms O, and the paternal grandmother were much less convincing in cross-examination. There were a number of reasons for that conclusion, besides their inferior presentation.
The father, Ms O, and the paternal grandmother admitted they conferred with one another after each and every visit by the child to craft a joint narrative about what had occurred. The narratives were typed into the paternal grandmother’s computer and emailed to the father’s solicitor after each visit. Those historical narratives formed the basis for the affidavits they each subsequently filed. The evidence they each adduced was therefore an aggregation of their individual perspectives. Accordingly, it is now impossible to know which parts of their evidence were indeed individual recollections and which parts were instead refreshed memories moulded by referral to the joint notes. They did not set out to purposefully harmonise their evidence, but that was the effect of their conduct.
Notwithstanding their joint approach to the compilation of contemporaneous notes, there were still important discrepancies in their evidence in chief. For example:
(a)The father inconsistently said he saw the bruising on the child’s forehead when he collected the child from the mother and immediately questioned the mother about it on the spot,[22] but also said he only noticed the bruise later, which meant he then had to send a text message to the mother to inquire about the bruising;[23]
(b)The father first said he noticed the bruising on the child’s arm quite some time after noticing the bruising on her head,[24] but then later said he noticed the bruising on the child’s arm simultaneously;[25]
(c)However, Ms O said the bruising on the child’s arm was not noticed until after they had departed the changeover venue and arrived at a local club, where the child’s sleeve was drawn up her arm;[26]
(d)Although the paternal grandmother made passing reference in her affidavit to the child being bruised on 26 August 2012, she filed a former affidavit in the proceedings in September 2012 in which she made no mention of the bruising at all; being only weeks after it was alleged to have been obvious. That affidavit was filed simultaneously with the father’s Form 4 Notice of Abuse and so, inferentially, the paternal grandmother’s affidavit was filed to verify the Notice. The paternal grandmother blamed the father’s former solicitor for the omission from her affidavit, but it is difficult to accept an intelligent and careful woman like the paternal grandmother would permit the omission of such an important event from her affidavit, when the very purpose of the affidavit was to help prove the child was at risk of physical harm in the mother’s care.
[22] Father’s first affidavit, para 88
[23] Father’s first affidavit, para 156
[24] Father’s first affidavit, para 88; Family Report, para 126
[25] Father’s first affidavit, para 156
[26] Ms O’s affidavit, para 43
The discrepancies only compounded during cross-examination.
Contrary to the evidence of both the father and Ms O, the paternal grandmother alleged:
(a)None of them saw the bruising on the child’s forehead until they arrived at the club; and
(b)None of them saw the bruising on the child’s forearm until after, firstly, they had seen the bruising on the child’s forehead, secondly, the child’s long-sleeve garment was removed, and thirdly, the candid photograph was taken of the child by the father.
As to the first of those propositions, the paternal grandmother was “absolutely” clear about it, at least until her attention was drawn to the fact that the father and Ms O had both given contrary evidence. The paternal grandmother then obfuscated and said she, at least, did not see the bruising on the child’s forehead until after they arrived at the club and neither the father nor Ms O had alerted her to it beforehand.
As to the second proposition, it was plainly contradictory to the evidence of Ms O about the bruising on the child’s arm being revealed by her sleeve being drawn up her arm. It was also plainly contradictory to the father’s evidence that the photograph was taken for the purpose of illustrating the bruising, so it could be sent to the mother and an explanation demanded from her.
It seems most likely, as the mother contended, that she was only challenged about the child’s bruising by way of text message sometime after the child was exchanged.[27] During the parties’ volley of text messages the father implied he was aware of the bruising on the child’s arm from the time of his collection of her. Upon seeing the photograph sent to her, the mother inquired of the father about the child’s arm and the father replied “that is how I picked her up”.[28]
[27] Mother’s affidavit, para 94
[28] Mother’s affidavit, para 94
The following morning the mother again sent a text message to the father vehemently denying any bruising on the child’s arm and forewarning of her intention to take the matter up with her solicitor. The father sent a text message in reply asking “who said anything about her arm?????”.[29] Answer: he did. When the mother made a direct inquiry of him the night before about the bruising on the child’s arm the father alleged he collected her in that condition. By the next morning, the father must have known the mother was incensed and he probably realised his allegation about the bruising on the child’s arm was likely going to be an issue over which his veracity was at stake. His sudden retirement of interest in the child’s arm injury was disingenuous. It was just as disingenuous of him to try and pass off his text messages to the mother as a “joke” when he discussed the matter with the Family Consultant.[30]
[29] Exhibit M2
[30] Family Report, para 127
It is quite improbable the extensive, livid bruising on the child’s forearm depicted in the photograph sent by the father to the mother could have completely dissipated within the few hours she remained in the father’s care. I accept there was no bruising on the child’s arm when she was delivered back to the mother later that same evening, just as the mother’s subsequent photograph proved. Her photograph must have been taken at that time because she sent it directly to the father. No doubt he would have challenged the mother if he denied receiving that photograph from her at that time.
It is also improbable such obvious bruising could have developed and then dissipated within only days. The father admitted there was no bruising on the child’s arm at her previous visit with him only days before on the evening of Thursday 23 August 2012 and I accept there was no evidence of any bruising on the child’s forearm only days later at her examination by the clinical nurse on Tuesday 28 August 2012. The father admitted the arm bruising was not present when he next saw the child on Wednesday 29 August 2012.[31] Even the father’s own paediatric witness, Dr C, said the bruising depicted on the child’s arm on 26 August 2012 appeared “large”, “significant” and “serious” and would have taken 3-5 days, and perhaps as long as 10-14 days, to subside.
[31] Family Report, para 128
Finally, the mother showed the father’s photograph of the child’s arm bruising to police who were dismissive of its authenticity.[32]
[32] Mother’s affidavit, para 105; Ms L’s affidavit, para 40
On the balance of probabilities, the child had no bruising on her forearm on 26 August 2012. By implication, that means the father, Ms O, and the paternal grandmother probably fabricated their evidence about the bruising on the child’s right forearm. The evidence does not permit any conclusion to be drawn about how the photograph sent to the mother could have come to portray the bruising to the child’s forearm. The mother’s theory that the father deceitfully applied make-up to the child’s arm is simply speculation.
Nevertheless, the implication of probable fabrication necessitates the exercise of caution when considering acceptance of evidence given by the father, Ms O, and the paternal grandmother on any other contested issue.
3 November 2012
The child was delivered by the mother to the father on 3 November 2012 with an injury to her forehead. There was some slight discrepancy in the evidence about the proper description of the injury, but the best evidence is that which emanates from the doctor who examined the child at the father’s request. That doctor’s description was of two bruises and an abrasion on the forehead.[33] The paediatricians engaged by the intervener, who much later saw photographs of the injuries, described them collectively as a bruise and small abrasions.[34]
[33] Dr C’s affidavit, Annexure B (T Suburb Hospital discharge referral)
[34] Ms W’s first affidavit, Annexure B (page 24)
It was an agreed fact the child only began to walk within preceding weeks.[35] The day before her delivery to the father, she climbed up and then fell from one step, striking her head. The manner in which the accident occurred was described consistently by the mother and Ms L.[36]
[35] Mother’s affidavit, para 124; Father’s first affidavit, para 96
[36] Mother’s affidavit, paras 134-135; Ms L’s affidavit, paras 25-35
Once in his care, the father took the child to the police and then to the “emergency room” at T Suburb Hospital, but there is no evidence of any interest being shown by the police in any criminal prosecution and no evidence of any need by the child for medical treatment, let alone emergency treatment. The hospital examination revealed the child was “alert, active, cooperative, interested, ambulatory, looks well, not in distress”.[37]
[37] Dr C’s affidavit, Annexure B (Hospital discharge referral); Family Report, para 148
The father deposed he took the child to the police and the hospital “due to [his] concerns for [the child]”,[38] but he did not elaborate what his concerns were. Given the child had bumped her head in the manner explained by the mother, the incident was plainly accidental and the injury did not warrant any medical attention. There was no need to involve either the police or doctors.
[38] Father’s first affidavit, para 110
The irresistible inference is that the father had embarked on a campaign of documenting every injury sustained by the child in the hope of pinning blame on the mother and enhancing his prospects of success in these proceedings. He was attempting to create corroborative evidence in the records of authorities such as the police and medical providers.
20 November 2012
The mother was, by then, anxious about the reactive attitude of the father and paternal family members to any blemishes on the child. On the morning of 20 November 2012, some hours prior to her delivery of the child to the father, the mother called the father to forewarn him of a bump on the child’s head.[39] The mother reported the child was being supervised by another adult at the time she bumped her head and the child did not require medical attention.[40] The mother was not challenged about that.
[39] Father’s first affidavit, para 122
[40] Ms W’s first affidavit, Annexure B (page 26)
When the child was later delivered to the father he saw the bruise on her forehead. He deposed that he then decided to retain the child and not return her to the mother,[41] but he had already made that decision sometime before and was working assiduously towards it. He knew the proceedings were back before the Court the following day (21 November 2012) and, without notice to the mother, he had already consulted Dr C about the child over a month before and obtained a report from Dr C over a week before.[42] In fact, the father sent a letter to Dr C on 4 November 2012 requesting his report urgently because his solicitor was organising to “initiate a recovery order for [the child]”. Dr C’s affidavit and his annexed report were produced at Court on 21 November 2012 and served on the mother without prior notice.[43]
[41] Father’s first affidavit, para 123
[42] Affidavit of Dr C, para 6, Annexure C
[43] Mother’s affidavit, paras 136-142; Family Report, para 165
The father unilaterally engaged Dr C and consulted with him on 16 October 2012, even though he was aware a single expert paediatrician was to be selected by the parties pursuant to orders made by the Court on 20 September 2012.[44] The single expert retained by the parties was Dr B.
[44] Orders 1.5 and 1.6 made on 20 September 2012
24 December 2012
The father, Ms O and the paternal grandmother alleged the child had another bruise on her head when she was collected from the mother on 24 December 2012,[45] but none of them was cross-examined on the issue.
[45] Father’s first affidavit, para 133; Ms O’s affidavit, para 88;
Paternal grandmother’s affidavit, para 36
The mother denied any injury of the child on that occasion[46] and forcefully adhered to her denial when cross-examined.
[46] Mother’s affidavit, para 205; Ms W’s first affidavit, Annexure B (page 26)
The father did show a photograph of the alleged injury to paediatricians much later appointed by the intervener,[47] but unless the photograph was endorsed with the date upon which it was taken it would not be corroborative of the father.
[47] Ms W’s first affidavit, Annexure B (page 24)
Even if the child was bruised on that occasion, there is no evidence the child required any medical treatment.
2 February 2013
The father alleged the child was bruised again on 2 February 2013,[48] but he elicited no evidence about it and he was not corroborated by either Ms O[49] or the paternal grandmother.[50]
[48] Father’s first affidavit, para 157
[49] Ms O’s affidavit, paras 101-103
[50] Paternal grandmother’s affidavit, para 36
The father did not mention the alleged injury to the paediatricians appointed by the intervener.[51]
[51] Ms W’s first affidavit, Annexure B (page 24)
Nor was there any photographic evidence of the injury.
The mother denied the existence of any injury on that occasion[52] and she was not cross-examined to the contrary.
[52] Mother’s affidavit, para 205
I am not satisfied on the balance of probabilities that the child exhibited any injury on that occasion.
16 February 2013
The father alleged the child was bruised again on 16 February 2013,[53] but when he detailed the events of 16 February 2013 he made no mention of any bruise.[54] The paternal grandmother also alleged the child was bruised on the forehead on that occasion, but she offered no explanatory detail.[55] Neither of them was cross-examined on the issue.
[53] Father’s first affidavit, para 157
[54] Father’s first affidavit, para 154
[55] Paternal grandmother’s affidavit, para 36
Ms O made no mention of any injury to the child on that occasion.[56]
[56] Ms O’s affidavit, para 110
The father made no mention of the alleged injury to the paediatricians appointed by the intervener.[57] Nor was there any photographic evidence of injury.
[57] Ms W’s first affidavit, Annexure B (page 24)
The mother denied the existence of any injury on that occasion[58] and she was not cross-examined to the contrary.
[58] Mother’s affidavit, para 205
I am not satisfied on the balance of probabilities that the child exhibited any injury on that occasion.
23 February 2013
In February 2013 the child was admitted to hospital for investigation of her low weight. During her admission she fell out of bed and sustained a lump and bruise on her forehead. Her treating doctor informed the father of the incident.[59] There is no evidence the child required any treatment.
[59] Father’s first affidavit, para 174
The mother explained the child fell from the bed whilst she was trying to change her.[60] She was not challenged about that evidence.
[60] Ms W’s first affidavit, Annexure B (page 26); Mother’s affidavit, para 206
2 March 2013
The father alleged the child was bruised again on 2 March 2013,[61] but it is otherwise not mentioned in his evidence and he did not mention it to the paediatricians engaged by the intervener.[62]
[61] Father’s first affidavit, para 157
[62] Ms W’s first affidavit, Annexure B (page 24)
The injury was not mentioned by Ms O.
The paternal grandmother said the bruise observed on the child on 2 March 2013 was attributable to her earlier fall while in the hospital.[63]
[63] Paternal grandmother’s affidavit, para 36
The mother was not cross-examined about any injury exhibited by the child on or immediately around that date.
I am not satisfied on the balance of probabilities that the child exhibited any fresh injury on that occasion.
18 May 2013
The father alleged the child was bruised on her head and had grazes on her knees on 18 May 2013.[64]
[64] Father’s first affidavit, paras 157, 158, 183
The paternal grandmother also alleged the child was injured on that date, but she did not specify in what manner.[65]
[65] Paternal grandmother’s affidavit, para 36
Ms O mentioned only the existence of knee grazes in her affidavit.[66]
[66] Ms O’s affidavit, paras 142-144
No injuries at all were mentioned by the father to the paediatricians retained by the intervener,[67] and there was no photographic evidence of them.
[67] Ms W’s first affidavit, Annexure B (page 24)
The mother was not cross-examined about the alleged injuries.
Even if the child did have those injuries the father realised they did not require medical treatment. Although he took the child to a pharmacy, that was only to obtain medication for oral thrush. The father said he simply removed the band-aids from the child’s knees and replaced them with fresh ones.[68]
[68] Father’s first affidavit, para 183
14 September 2013
The child undoubtedly had a bruised forehead when the mother delivered the child to him on 14 September 2013.
The father took the child to the police to revoke his report made to them the week before about the child being a missing person. He did not seek out any medical treatment for the child. Rather, according to the father’s evidence, the police officer to whom he spoke acted on her own initiative to report the child’s bruise to the intervener, which resulted in the intervener’s involvement and admission of the child to hospital for full paediatric assessment.[69]
[69] Father’s second affidavit, paras 42-48; Ms W’s first affidavit, para 12
The mother explained how the child fell and hit her head while playing in a playground and that she had been checked by a doctor before her delivery to the father. She did not require any treatment.[70] The mother was not challenged about the accuracy of her evidence.
[70] Mother’s affidavit, para 234, Annexure G
The father alleged he was told by an emergency registrar (Dr Z) at the hospital that the child’s bruising “[did] not match the mother’s explanation”,[71] but the paediatricians engaged by the intervener considered the history of the injury given by the mother was a “plausible explanation”.[72] The direct evidence of the two paediatricians, who are evidently better qualified, is more reliable than the father’s indirect report about the registrar’s opinion.
[71] Father’s second affidavit, para 50
[72] Ms W’s first affidavit, para 19, Annexure B (pages 32, 34)
The intervener assessed the child to be safe in the care of the mother.[73]
[73] Ms W’s first affidavit, para 24
14 October 2013
The child fell and hit her head at the mother’s home on 14 October 2013. She later took the child to a doctor to be checked and found she did not require any treatment.[74] Foolishly, the mother panicked and initially lied to the intervener’s caseworkers by denying the child’s injury when they coincidentally visited her home shortly after the child’s fall.[75] Although the mother recanted and admitted the child’s injury a short time later, her initial dishonesty means her evidence also warrants careful evaluation before acceptance.
[74] Mother’s affidavit, paras 253-257
[75] Ms W’s first affidavit, paras 27-29, Annexure T (page 87)
The following day, the father was informed by the intervener’s caseworkers of the child’s injury, her examination by a doctor, and the doctor’s opinion she was fine.[76] Despite such re-assurance, when the child was delivered to the father some days later on 19 October 2013, he took her to another doctor.[77] He obviously did so merely to document the injury, not to seek out treatment for the child, even though the injury was already verified by the intervener.
[76] Ms W’s first affidavit, para 36
[77] Father’s second affidavit, para 93, Annexure J
The intervener removed the child from the mother’s care and temporarily placed her with the father in late October 2013,[78] but by early November 2013 the intervener concluded there were no safety concerns for the child in the mother’s care and the child was returned to her care.[79]
[78] Ms W’s first affidavit, paras 58-61
[79] Ms W’s second affidavit, paras 18-23
16 November 2013
When the father collected the child on 16 November 2013 she had a bruise on her forearm, but there was an unexplored factual dispute about whether she also had a bruise on her left cheek.
The father later took the child to a medical centre and obtained a doctor’s certificate confirming the bruising to both the forearm and cheek.[80]
[80] Father’s second affidavit, para 102, Annexure L
The father complained to the intervener about the injuries two days later, but at that time he mentioned only the bruising on the child’s arm, not on her cheek.[81] It was Ms O who subsequently telephoned the intervener and reported the bruise on the child’s cheek.[82] Ms O told the intervener’s caseworker the father did not ask the mother about the bruising,[83] even though the father said he saw it at the time he collected the child from the mother and he therefore had the opportunity to ask her about it.
[81] Ms W’s second affidavit, para 30, Annexure KW-1 (page 41/72)
[82] Ms W’s second affidavit, para 31, Annexure KW-1 (page 43/72)
[83] Ms W’s second affidavit, para 31, Annexure KW-1 (page 43/72)
The mother denied, both to the intervener’s caseworker and in evidence, that there was any bruise on the child’s cheek.[84] She said the bruise and the small scratch on the child’s arm were inflicted by a pet rabbit with which the child was playing.[85] The child seemed to give a generally consistent account to the intervener’s caseworkers.[86] The mother was not challenged about either the discrepant evidence concerning the alleged bruise on the child’s cheek or her evidence about how the injury on her arm occurred.
[84] Ms W’s second affidavit, Annexure KW-1 (pages 62/72-63/72);
Mother’s affidavit, para 266
[85] Mother’s affidavit, para 266
[86] Ms W’s second affidavit, Annexure KW-1 (page 62/72)
There is no evidence the child required any treatment for any of the injuries.
20 December 2013
The child had another bruise on her head when the father attended the intervener’s offices to collect her on 20 December 2013.[87]
[87] Father’s second affidavit, para 125
The mother told the intervener’s caseworkers of the bruise, which she said was caused by the child walking into the edge of a cupboard in her room. The caseworkers asked the child for her explanation and she verified the mother’s account.[88] The mother was not cross-examined about that evidence.
[88] Ms X’s affidavit, Annexure B (page 7)
The intervener’s caseworker was cross-examined about that incident. She said she was unconcerned about it and accepted the explanation for the injury because satisfactory and consistent accounts for it were given independently by the mother and the child.
The child’s injury did not require treatment.
27 December 2013
The father alleged the child had “three fingerprint marks on her bum cheek” when he collected her on 27 December 2013.[89] He was not cross-examined about it, but nor was he corroborated by Ms O or the paternal grandmother.
[89] Father’s second affidavit, para 128
Because the intervener’s offices were closed over the Christmas period, the changeover did not occur there. The parties instead exchanged the child at a public venue. Neither party made any subsequent complaint to the intervener about that visit.[90] In light of the history, it is almost inconceivable the father would not have lodged some complaint about further injuries to the child if they existed.
[90] Ms W’s second affidavit, para 44
The mother was not cross-examined about the existence of any injuries on the child at that time.
Even if the child was bruised on that occasion, there was no evidence that the child needed treatment.
3 January 2014
The child had further injuries when the father attended the intervener’s offices to collect her on 3 January 2014. The injuries comprised three light scratches on her forehead, a graze on her right knee, bruises on her right shin, a graze on top of her foot, and a small red dot on her palm. The mother explained she was playing at the park with other young children and had fallen over while running after the other children and she had also fallen from some undescribed height.[91] The mother was not cross-examined about that explanation.
[91] Ms X’s affidavit, para 10, Annexure C
The intervener’s caseworker was cross-examined about that conversation with the mother. She said she accepted the mother’s account of the incident even though she was unable to independently verify it. She was unconcerned about the injury.
There was no evidence the child required any medical attention for her injuries.
Dr C
Even though the father conducted the case on the basis that the child’s injuries were sustained accidentally through inadequate supervision by the mother, he perplexingly elected to adduce historical evidence from Dr C which tended to suggest the child’s injuries were sustained through physical abuse by the mother. It was a rash decision.
Dr C’s evidence was thoroughly unreliable for a host of reasons.
As already noted, Dr C was retained unilaterally by the father. The father was referred to Dr C by a general practitioner, who requested Dr C to see the child for “opinion and management of [failure to thrive]”.[92] It was no part of Dr C’s remit to investigate and comment upon any other aspect of the child’s health.
[92] Dr C’s affidavit, Annexure B
Dr C’s devotion to the instructed task went no further than to meet once with the father and child on 16 October 2012, examine the child, and furnish the father with a Heinz pamphlet about healthy eating for a child of up to three years of age. He conducted no further investigation. There were no blood tests and no x-rays. The doctor advised the father to return with the child within four months for follow-up, but the father did not do so.
From that point, Dr C became embroiled in a campaign which went far beyond his initial instructions. He abandoned his therapeutic role and adopted a forensic one.
The father later provided a series of photographs to Dr C, some of which depicted bruises and abrasions on the child’s body. The father admitted he delivered those photographs to the doctor some time after the consultation. The father also wrote to Dr C on 4 November 2012 conveying his concern about the child’s safety in the mother’s care and requesting his urgent provision of a report so it could be used to support an application before the Court to have the child removed from the mother’s care.[93]
[93] Dr C’s affidavit, Annexure B
Dr C responded to the request by preparing a draft report on 6 November 2012. Remarkably, he sent the draft report to the father for his approval. The father made amendments to the draft report and returned it to the doctor.[94] Dr C then incorporated the father’s amendments into his final report, dated 9 November 2012, which he sent to the general practitioner who provided the original referral.[95] Dr C later compiled his affidavit, annexing his final report, which was filed on 21 November 2012.
[94] Exhibit ICL8
[95] Dr C’s affidavit, Annexure C
Dr C’s affidavit makes express reference to his knowledge of, and compliance with, divisions of the Family Law Rules dealing with expert evidence.[96] Specifically, the doctor acknowledged his overriding obligation to be objective, unbiased, and impartial (Rule 15.59(3)(a)), and the need for him to inform the Court if he believed his opinions were based on incomplete information (Rule 15.59(3)(e)). Such obligations are hardly novel, because they reflect common sense.
[96] Dr C’s affidavit, para 16
Unfortunately, Dr C’s profound infractions of those obligations were astonishing and serious.
Dr C ultimately conceded he was, or at least may have been, biased. He lost his impartiality and allowed himself to become an advocate for the father’s cause. The doctor’s admission was repugnant to the assertions in his affidavit that he understood his duty to the Court and complied with it by being “independent and impartial”.[97]
[97] Dr C’s affidavit, paras 15, 18
Dr C conceded it was a mistake to have relied exclusively upon the instructions provided to him by the father and not to have consulted the mother, who was admittedly the primary carer of the child. His invitation to the father to vet and settle his expert report was an inexcusable lapse in professional judgment. However, his lapses of judgment only multiplied.
In February 2013, Dr C wrote to the single expert paediatrician, Dr B, evidently to try and exert influence over that doctor’s opinion. He did so after the father informed him of the name of the single expert and asked him to contact him. That was an extraordinary breach of protocol.
Even though Dr C had never met the mother, he relied entirely upon the father’s reports about her, and his area of specialty was confined to paediatrics, he wrote to Dr B expressing his views about the mother’s incompetence and her motives in the following adverse terms:[98]
I have never met [the mother] but I have serious concerns about her mental state. I think she is incapable of caring and she has a vindictive vendetta against [the father] as he has a new partner. I am surprised that the Court has decreed [the mother] is capable…
I wish you well in this difficult case. I am happy to talk to you in private should you so desire.
[98] Mother’s affidavit, Annexure F
Dr C even tried to exert influence for the father beyond the confines of the litigation. The doctor admitted he made at least one report about the child to the intervener at the father’s request, which he conceded he would not have done of his own volition. Nothing about the child’s single presentation to him on 16 October 2012 required him, as a mandatory reporter, to report to the intervener that the child was at risk of harm. The doctor must have submitted to the importunity of the father.
In September 2013, Dr C even sought from the father additional information about the mother’s “parenting skills”, “personality”, and “position to be a partner and mother”. Why he sought such information remains a mystery because it had nothing to do with the evidence he was in a position to offer as an expert paediatric witness. The willingness of the father’s solicitor to provide the information to Dr C on the father’s behalf was just as surprising.[99] She must or should have known Dr C could not have offered any expert paediatric opinion about the child based on the father’s subjective opinions about the mother’s personal deficiencies.
[99] Exhibit M5
However, returning to the opinions expressed by Dr C in November 2012 via his report and affidavit, relatively little space was devoted to the expression of opinion about the child’s alleged failure to thrive, in respect of which he was originally engaged. His expressed opinions were directed, in the main, to the child’s bruises and abrasions depicted in the photographs he was subsequently given by the father. The child had no injury of any sort at the time of their only consultation on 16 October 2012, so Dr C’s opinions were entirely based on what he was able to observe in the photographs (which he annexed to his affidavit), what he was told by the father, and the contents of other documents provided to him by the father.
Unfortunately, Dr C made some fundamental errors in the preparation of his report and affidavit. They include the following:
(a)He noted in his report that the child “commenced walking on 28/10/12”, but then inconsistently asserted in the body of his affidavit that at the time of his assessment on 16 October 2012 the child was “walking independently and had good balance”.
The point was significant because the child was certainly not a steady walker by even November 2012. Both parties adduced evidence of the child only learning to walk in October 2012[100] and the mother attributed the child’s injuries in late August 2012 and early November 2012 to head-knock accidents while she was crawling or just walking. It was the photographs of the child’s injuries sustained in August 2012 and November 2012 that the doctor relied upon to express his opinions.
(b)The doctor was informed by the father that the bruising depicted on the child’s right arm in August 2012 (shown in photograph 2 annexed to the affidavit) was sustained through the child falling down stairs.
It is common ground that is not correct. That bruising, if it ever existed, was photographed by the father on 26 August 2012. The child did not fall down the stairs until November 2012. The doctor concluded the arm bruising was not likely caused by a fall down the stairs, as indeed it was not, and wrongly believed the mother had offered a false explanation for the injury.
(c)The doctor also assumed the child had actually sustained the bruising to her right arm, as depicted in that photograph. He described that bruising as severe during cross-examination. That assumption became integral to the opinions he expressed which were adverse to the mother’s interests.
A finding of fact has now been made that no such bruising was sustained by the child.
(d)The doctor believed the child also sustained bruising to her neck, which he mistakenly thought was depicted in another photograph (being photograph 1 annexed to the affidavit).
He acknowledged the error in cross-examination. The photograph showed no such bruise, which the doctor eventually conceded. That photograph depicted the bruising and abrasions to the child’s head which she sustained when she fell down the stairs in November 2012. The father took the child to the hospital about those injuries, which were documented in the hospital discharge referral. There was no neck bruising noted at the hospital; only bruising and abrasions to her forehead.[101]
(e)Somehow, the doctor’s opinion about causation of the child’s injuries metamorphosed and no explanation was given for the transformation.
At the time of compiling his report, the doctor only “strongly suspect[ed]” the child’s injuries were non-accidental and were inflicted by an adult, but two weeks later when he prepared his affidavit he was sure and he opined the child was “at serious risk of…further physical abuse” by the mother.
[100] Father’s first affidavit, para 96; Mother’s affidavit, para 124; Family Report, para 161
[101] Dr C’s affidavit, Annexure B; Family Report, paras 148-149
When the doctor was challenged in cross-examination he had no option but to revise his stated opinions. In fact, the revision amounted to an emphatic retraction.
He resiled from his opinion that the mother’s explanations for the child’s injuries were not plausible.[102] More specifically, he acknowledged the child had no neck injury,[103] he acknowledged the injuries depicted on the child in the first photograph were indeed consistent with the child’s reported fall down stairs,[104] and he accepted the alleged bruising on the child’s arm in August 2012 had nothing to do with her fall down the stairs in November 2012.[105] Such concessions made it impossible for him to hold to the bald opinion that the child was “at serious risk of neglect and further physical abuse”.[106]
[102] Dr C’s affidavit, para 7
[103] Dr C’s affidavit, para 7(i)
[104] Dr C’s affidavit, para 7(ii)
[105] Dr C’s affidavit, para 7(iv)
[106] Dr C’s affidavit, para 12
Conclusions
The child suffered accidental injuries to her body on at least 12, and possibly 14, occasions over a period of nearly two years whilst she was under the supervision of the mother.
The mother agreed with various propositions posed to her in cross-examination that the child had sustained “quite a number of bruises” and a “relatively large number of injuries” while in her care.
Indeed, the paediatricians engaged by the intervener reported in September 2013:[107]
We feel that the frequency and type of injuries sustained by [the child] is above that of the usual “scrapes and bumps” of childhood…the number and frequency of these injuries as a whole raises concerns about possible poor supervision, neglect and/or non-accidental injury.
[107] Ms W’s first affidavit, Annexure B (page 33)
But several things need to be said about that observation:
(a)The paediatricians were expressing concerns about “possibilities”; nothing more;
(b)There was no other evidence, either in their report or elsewhere, that the “type” of injuries sustained by the child was anything other than of a type entirely consistent with accidental injuries; and
(c)As would be obvious, a “concern” about the “possibility” of “non-accidental injury” is idle speculation about a hypothesis – not the expression of an expert opinion based on proven facts.
While it is logical and reasonable for the “frequency” of the child’s past injuries to arouse concern, there are countervailing considerations that objectively and reasonably moderate such concern.
On each and every occasion they occurred, the child’s injuries were superficial. They were confined to bruises and minor abrasions.
None of the child’s injuries ever required medical treatment, even on the father’s analysis of the situation.
The mother’s explanations for the child’s injuries are plausible and the nature of the child’s play in which she was engaged at the time she sustained the injuries was unremarkable.
None of the evidence placed before the Court provides a rational platform for any inference that the mother physically abused the child or would do so in the future. It was entirely reasonable for the father and the paediatricians to wonder about that possibility, but the evidence falls well short of proving the child’s physical abuse on the balance of probabilities, or alternatively, the unacceptable risk of such abuse.
The child suffered her injuries through normal childhood misadventure. The same sort of misadventure befell the child when in the care of the father. The child once fell from a pram onto her head when in the care of the father.[108]
[108] Family Report, para 88
The real question is whether the mother’s supervision of the child was adequate to eliminate actual and potential risks of harm to the child that were more than merely trivial.
Supervision of young children is not a binary concept: either satisfactory or unsatisfactory. The level of supervision afforded by a parent to a toddler can fall along a spectrum of adequacy that ranges between the polar extremes of incomparably excellent and inexcusably poor.
Of course, the child’s accidents were theoretically preventable. If the mother was always in the immediate physical presence of the child, always exclusively attentive to the child, always vigilant to guard against the risk of any danger no matter the magnitude, and always swift to respond and avert any accident, then she could have caught the child as she fell or steered her away from the furniture. A parent who provided such an acute degree of supervision would certainly avert the risk of injury to the child, but would not necessarily be a responsible parent. A child learns to cope in life and develop self-sufficiency through personal experience of trial and error. The role of a responsible parent is to ensure the child’s experiences are kept within reasonably safe parameters.
There is no evidence the child suffered from bruises and abrasions while in the care of the father after separation. But that only serves to prove the father exercises more vigilance in his supervision of the child than the mother. It does not necessarily mean the mother’s level of supervision of the child is inadequate.
The child is at less risk of physical injury in the care of the father, but equally, she is not at unacceptable risk of harm in the care of the mother. There is clearly a risk of some physical harm to the child in the care of the mother, but there are two aspects to assessment of the extent of the risk – the chance of recurrence of any harm at all and, if it does recur, how serious the harm is liable to be. Neither aspect of the risk is unacceptably high.
It is desirable that the child not continue to sustain injuries with the frequency she has in the past, but if the mother does not appreciably improve the level of her supervision, the risk of harm to the child still remains low. At worst, the child would probably continue to suffer bruises and abrasions in the course of her play, which will cause her only transient discomfort. The evidence does not justify any finding that the child is at risk of anything more than minor and evanescent physical harm.
Alleged failure to thrive
This allegation lost all momentum as the hearing progressed.
At the outset, it should be noted that both the mother and father are relatively slim adults. The child is a product of that gene pool.
The father admitted in cross-examination that, when born, the child was classified as “low-average” weight. In fact, while the parties’ cohabited, the child’s general practitioner noted the child was a “low average baby for everything”.[109] The child began eating solid food when approximately five months of age and was breastfed until 14 months of age.[110]
[109] Family Report, para 89
[110] Mother’s affidavit, para 22
Even prior to the parties’ final separation, they were worried by her slow weight gain, which the father admitted in cross-examination. It was therefore disingenuous of him to previously assert to the Family Consultant there was no concern about the child’s weight prior to separation.[111]
[111] Family Report, paras 92-93
The mother took the child for medical review in relation to her low weight in February 2012 and April 2012. She was advised the child was small “due to her genetic make-up”.[112] The mother continued taking the child to a health care nurse for frequent check-ups in the months following separation.[113]
[112] Mother’s affidavit, para 24; Family Report, paras 90-91
[113] Mother’s affidavit, para 67; Family Report, paras 96, 106, 111, 114, 124, 134, 208
Despite the child’s low weight from birth, it is unlikely the father was dissatisfied with the mother’s care of the child during their cohabitation. He told the Family Consultant he would have chosen to continue his relationship with the mother,[114] and it is unlikely he would have made that choice if he believed the mother’s primary care of the child was so egregiously deficient. It is uncontroversial the mother decided to separate from the father, which caused an argument between them.[115]
[114] Family Report, paras 28-29
[115] Family Report, para 183
The parties separated in April 2012 and during May 2012 the father detained the child in his care, even though she was still being breastfed.[116]
[116] Family Report, para 8
Even while the child was in the father’s sole care in late May 2012 she was admitted to hospital with concerns about dehydration and malnourishment.[117] The father conceded the child occasionally did not eat well while she was in his care during 2012 and 2013,[118] which vindicated the mother’s same concern.[119] The child’s past disinclination to eat therefore occurred in both parties’ households.
[117] Mother’s affidavit, para 51; Ms O’s affidavit, para 8; Family Report, para 99
[118] Father’s first affidavit, paras 61, 136, 154; Ms O’s affidavit, para 110
[119] Mother’s affidavit, para 198; Father’s first affidavit, para 159
Upon the child’s return to the mother pursuant to the Court’s recovery order made on 31 May 2012, the mother took the child to hospital for review of her weight. The child was admitted briefly and the mother was given further advice about the child’s diet.[120]
[120] Mother’s affidavit, paras 68-70
The paternal family took the child to numerous medical appointments for investigation of her low weight in May and June 2012.[121] No evidence was adduced from those doctors above and beyond the Family Report’s summary of their notes, so it must not have been able to advance the father’s case (see Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181 at 197; IPN Medical Centres (NSW) Pty Ltd v Idoshore Pty Ltd [2008] FCAFC 163 at [28]-[29]).
[121] Family Report, paras 100, 101, 104, 112
The intervener conducted a risk assessment in June 2012, which noted the child “does not have a diagnosis of failure to thrive”.[122]
[122] Family Report, paras 118, 209
In July 2012 the father proposed that he and the mother share the care of the child,[123] which he presumably would not have done if he had abiding concerns about the child’s health while living with the mother.
[123] Family Report, para 206
In September 2012 the parties agreed to appoint a single expert witness to review the child. Dr B was subsequently appointed for that purpose, but he did not see the child until January 2013.[124]
[124] Father’s first affidavit, para 143
In the meantime, the father had the child reviewed independently by Dr C in October 2012 and procured a report from Dr C in November 2012. The limitations on the veracity of Dr C’s professional opinions have already been explained. In any event, he did not express an opinion that the child was failing to thrive. Rather, he only pitched it as a suspicion.[125] Surprisingly, the doctor’s suspicion about the child’s failure to thrive was influenced by what he perceived to be the child’s “sad [facial] expression” in one of the photographs he was shown by the father, since he considered that is “typically what you would see in children who have been exposed to abuse and neglect”.[126]
[125] Dr C’s affidavit, para 11
[126] Dr C’s affidavit, para 11
There could have been a hundred reasons why the child wore a sad expression on her face in the photograph seen by Dr C, none of which were related to how much she ate or the level of her nutrition. It is fanciful to attempt to draw a nexus between her failure to thrive and her facial expression in a single photograph taken when she was in the care of the father, not the mother. I do not accept Dr C’s evidence.
Contemporaneously with the father’s engagement of Dr C, the mother was taking the child to a local health service in relation to the child’s nutrition. The intervener contacted the health service independently and confirmed the child was seen by the service and was “regularly putting on weight”.[127]
[127] Magellan Report, page 4
Dr B first saw the child in January 2013. The mother provided the doctor with the same history of the child to which she deposed in her affidavit.[128] The doctor at that time said:
My impression was [the child] did not have signs of acute illness however her weight is below the bottom of the broad average range and although [the child] is not a tall girl her weight percentile is low for her length.
[128] Exhibit ICL5, report 10/1/13
The intervener decided in November 2013 not to pursue the parallel proceedings in the Children’s Court of NSW and to instead participate in these proceedings. Upon revival of this Court’s prior interim orders, the child was returned to the mother’s care after having lived with the father for approximately two weeks. That decision infuriated the father. He told the intervener’s caseworker:[167]
This is a massive joke. I’m not going to stop
[The Minister] is getting another letter
I’m not going to stop, I’m just starting
[167] Ms W’s second affidavit, para 21, Exhibit KW-1 (pages 23/72-24/72)
Later in November 2013 the father left a message for the intervener’s casework manager in the following terms:[168]
This assessment crap…needs to finish cos this is an absolute joke…I’m not going to stop what I’m doing. I’m gunna get to the bottom of this as it’s an absolute joke (sic).
[168] Ms W’s second affidavit, para 30, Annexure KW-1 (page 41/72)
Aside from the father’s agitation with the intervener, he disturbed the peace the mother desired for herself and the child.
The father unashamedly informed the intervener’s caseworkers “I monitor this mother. I have cameras and spyglasses”. He offered to show the caseworkers video footage he had taken of the mother.[169] The father knew the mother was upset by his practice of filming her because she told him directly.[170]
[169] Ms W’s first affidavit, para 45
[170] Mother’s affidavit, paras 223-225
One of the father’s many grievances about the mother was her unreliability in attending changeovers of the child, but one of the reasons for her unreliability was the loss of her driver’s licence, for which the father bears some blame.
The father failed to pass on official correspondence to the mother which ultimately led to the suspension of her driver’s licence, about which he taunted her.[171] The father was impelled to concede he could have conveniently given the correspondence to the mother at a changeover, but instead he placed it all back into the mail endorsed “return to sender”. Obviously, the mail would then have gone astray because it would not have been posted to the mother at the father’s address if the sender was aware of the mother’s current address.
[171] Mother’s affidavit, paras 88-93, 103, 111
On one occasion in September 2012, in the belief that the mother was driving a car containing the child without a licence, the father followed the mother and hailed a police officer to take enforcement action against her.[172] It transpired the mother still held a valid licence at that time. Importantly, though, it was not the manner of her driving that caused the father to involve the police. He was attempting to get her into trouble over the licence.
[172] Mother’s affidavit, para 113
On another occasion in August 2013, the father again followed the mother and child as they travelled in a taxi in the belief the mother would alight the taxi some distance away from the changeover venue and then continue to drive home with the child in her own car whilst unlicensed. She did not do so. Deprived of any opportunity to complain about the mother’s unlicensed driving, the father complained about the mother not having the child properly restrained in the taxi.[173] He now realises he was in error about that as well.
[173] Father’s second affidavit, paras 6-13
The father adduced evidence about how the mother’s former partner, Mr N, formerly assaulted him and treated him with disrespect, about which the father was understandably aggrieved.[174] The father formerly regarded Mr N with such disdain he proposed the Court impose an injunction precluding the mother from allowing the child to be brought into contact with Mr N.[175] However, in recent months the father changed his attitude about Mr N so profoundly as to permit the change to be characterised as an epiphany.
[174] Father’s first affidavit, para 126; Father’s second affidavit, paras 72-77;
Family Report, paras 197-199
[175] Amended Response filed 31/1/13, Order 5
Since the mother severed her relationship with him in November 2013, Mr N and the father offered one another reciprocal help. Mr N volunteered his support to the father in this litigation[176] and the father terminated his apprehended violence complaint against Mr N. The father even attended Court with Mr N ready, willing, and able to give evidence as a witness to help Mr N defend his criminal prosecution for assaulting the mother. The father now allegedly realises Mr N has such admirable qualities he believes it would benefit the child to maintain her relationship with him. In fact, the father said he and Mr N “still catch up” so Mr N can see the child.
[176] Father’s second affidavit, paras 91-92; Exhibit ICL6
The terms of any bargain offered or struck between the father and Mr N are really immaterial. The important point is that the father fails to appreciate how manipulative his behaviour in respect of Mr N has been. He loathed Mr N until he separated from the mother. Now the father regards him as an ally in his dispute with the mother. The father is actively working to involve Mr N in the child’s life when he must know the mother would object, since she acted to remove him from their lives. As the intervener’s caseworker pointed out, the father may be facilitating a breach of the interim apprehended violence order that protects the mother and child from Mr N.[177] Little wonder the mother feels isolated and controlled.
[177] Mother’s affidavit, Annexure E; Ms W’s second affidavit, para 27
The father really seems intent on gaining control of the child and diminishing the mother’s influence in the child’s life. The child has probably been encouraged, explicitly or implicitly, to refer to Ms O as “Mummy”.[178] It is highly improbable a child less than three years of age would voluntarily use such a special name reserved for such a special person as her primary attachment figure to describe the father’s current partner. Similarly, though less significantly, the child is also encouraged to call Ms O’s parents “Nanny” and “Pa”.[179]
[178] Family Report, para 14
[179] Ms O’s affidavit, paras 78, 103
There is no doubt about the collective approach taken by the paternal family towards the mother and this litigation. The paternal grandmother erroneously believed she and the paternal grandfather were actually parties in the proceedings. The paternal grandparents clearly authored some of the correspondence that was sent to the parliamentarian seeking political help. Surprisingly, Ms O also said in evidence she expected to have “some say” in how the child was raised.
The father seems to have little appreciation of the emotional harm he is liable to cause the child by having her body repeatedly inspected for injuries and having her frequently weighed. The Family Consultant said such behaviour could amount to emotional abuse of the child, but that was not a revelation to the father because he admitted being previously advised to desist from doing so by the intervener’s caseworkers. The father said in cross-examination he did not now have the child checked “every time”, but rather only every few weeks. His solution was not to cease such conduct, but rather for the Court to make an order for both parties to attend the periodic “weigh-ins”.
The father maintained his proposal for the child to only spend short amounts of supervised time with the mother at a contact centre. He apparently envisaged that arrangement as permanent. The only reason for the proposal was the maintenance of his belief that the child remains at risk of harm in the mother’s care, which risk can only be satisfactorily attenuated by independent supervision. Even allowing for the father holding such belief genuinely, it demonstrated his comprehensive inability to assess the evidence he heard during the trial with detached objectivity. He views all information he receives about the mother and child through a prism of cynical doubt.
The staff of the Brighter Future program, with whom the mother was formerly involved, considered the father’s conduct engendered “stress and fear” in the mother, which had a “big impact” on her and “the potential to inhibit normal inquisitive exploration and physical play for [the child]”.[180] The Family Consultant realised it was a matter for the Court’s factual determination about whether the father had engaged in a pattern of behaviour that “de-stabilis[ed] the mother’s emotional wellbeing”,[181] but she clearly agreed with the conclusion reached by Brighter Futures staff. She said in cross-examination it demonstrated a lack of insight by the father.
[180] Family Report, paras 119, 225
[181] Family Report, para 226
The father was unable to identify a single virtue possessed by the mother as a person or parent. He could not name one for the Family Consultant,[182] nor during his cross-examination.
[182] Family Report, para 30
The father often mentioned in his affidavit and during cross-examination his observation that the child tended to become distressed when returned to the mother. He seemed to assume that such behaviour proved the child was unwilling to return to the mother because of some defect or danger the child perceived in the mother or her household. It was unwise of him to make such an assumption. The issue was taken up in the cross-examination of the Family Consultant. She said there were a “range of possibilities” for such behaviour by the child. The one possibility she elected to elaborate was that the child was aware of the high conflict between the parents, which was most evident at changeovers, and the child was anxious about being exposed to such conflict. The child’s behaviour was a reaction to such anxiety.
The Family Consultant’s explanation makes perfect sense and it is consistent with unchallenged evidence. Firstly, the parental conflict is undeniable. Secondly, the mother admitted to the intervener’s caseworkers the child is always unsettled when delivered into her care, but that she settles very quickly thereafter.[183] Thirdly, there is also some independent evidence of the child displaying some distress on an occasion she was delivered to the father.[184]
[183] Ms W’s second affidavit, Annexure KW-1 (pages 40/72, 54/72)
[184] Ms W’s second affidavit, Annexure KW-1 (pages 48/72-49/72)
I accept as valid the Family Consultant’s unchallenged opinion that the father does not have any tangible ability or willingness to facilitate a close and continuing relationship between the child and the mother.[185] Of course, it does not matter whether the father’s conduct is deliberate or inadvertent, since it results in the same outcome either way. The conduct of the father and his family inexorably proved they are unable to recognise and prioritise the child’s need for “positive and attuned relationships with both parents”.[186]
[185] Family Report, para 31
[186] Family Report, para 226
Unfortunately, the father’s lack of insight about the child’s emotional needs was not improved by his completion of a post-separation parenting program in September 2012.[187] There is little room for optimism about improvement. In cross-examination he professed being unsure whether his conduct had caused stress for the mother. He could not call to mind any particular aspect of his conduct which might account for that.
[187] Father’s second affidavit, para 138
However, the incapacity to fully appreciate and provide for the child’s emotional needs is not an impairment suffered exclusively by the father. The mother is also afflicted to some lesser extent.
While she told the Family Consultant of her belief in the importance of the child enjoying a meaningful relationship with the father, she was unable to identify any of his parenting strengths either.[188]
[188] Family Report, para 43
In breach of interim orders or extraneous agreements reached by the parties from time to time, the mother failed to present the child for changeover in a timely fashion on a reliable basis. Her failures were detailed by the father.[189] She had reasons for many of those occasions, but not all of them. Sometimes her car was broken down or out of fuel,[190] for a period she was or believed she was unlicensed,[191] and she was frightened of the father and preferred not to attend changeovers alone.[192] Sometimes she simply refused to comply because the father would not agree to a variation she requested to suit her.
[189] Father’s first affidavit, p 89, 179-185, 187-191; Father’s second affidavit, p 23-41, 85-87
[190] Exhibit M1, para 6
[191] Mother’s affidavit, paras 103, 231; Family Report, para 42
[192] Mother’s affidavit, paras 73-74, 79-80, 132; Exhibit M1, para 7
While the mother understands the importance of the child’s relationship with the father, she has difficulty sustaining the effort to ensure it is promoted.
The father also challenged the mother’s capacity to provide for the child in other ways. He contended the mother’s frequent residential moves caused the child emotional insecurity, that she was uncommitted to receipt of the help offered to her by the intervener, and that she was impaired by psychological ill-health. However, while the evidence vindicates a degree of concern about two of those issues, it falls short of convincing proof that the mother fails to provide a satisfactorily safe and emotionally secure environment for the child.
The mother has indeed moved house frequently in the last two years, but some of those moves were attributable to her fear of harassment by the father. Although the father was dismissive of that explanation, the mother’s perception rather than the actuality is most important.
The mother gave evidence at trial which implied her residence was now settled for the immediate future. She and the child lived in a privately leased home on the Central Coast of NSW and she was recently re-assured by the landlord or agent about renewal of the lease. Whether that was her honest perception of circumstances at the time she gave her evidence was a moot point, but factually it proved incorrect. The fresh evidence adduced by the father after his case was re-opened proved the mother’s occupation of that property was terminated, apparently as a consequence of several weeks of arrears in rent.
The termination of the lease was revealed when the mother conferred with the intervener’s caseworkers on 28 February 2014, only days after the trial was concluded. The mother was obliged to vacate the property by 12 March 2014 and she told the caseworkers she was considering moving with the child to Sydney from the Central Coast.[193]
[193] Father’s third affidavit, pages 17/47, 23/47, 25/47, 29/47
The mother agreed with the intervener’s caseworkers to approach Housing NSW and apply for public housing, but she failed to do so because she found alternate accommodation with acquaintances.[194] On 10 March 2014, the mother notified the intervener’s caseworkers that she and the child had moved to live with acquaintances (Ms BB and Ms CC) at Town I and she disclosed their address.[195] Three days later the caseworkers conducted an unannounced home visit at the property, which they found to be “extremely clean and organised”. Ms BB and Ms CC confirmed the mother and child were welcome to stay for as long as they needed. The mother was not being charged rent or board. Most recently, on 17 March 2014, the mother informed the intervener’s caseworkers she intended to remain living at Town I and not move to Sydney.[196]
[194] Father’s third affidavit, pages 18/47, 21/47, 31/47, 45/47
[195] Father’s third affidavit, pages 18/47, 32/47, 33/47
[196] Father’s third affidavit, pages 19/47, 35/47, 38/47
At trial, the Family Consultant advised against reversal of the child’s residence on the basis of the mother’s past residential instability. The fresh evidence of the most recent change to the residential circumstances of the mother and child does not appreciably devalue the probative weight of the Family Consultant’s opinion.
The mother was formerly reluctant to co-operate with the intervener but, after her separation from Mr N and the return of the child to her in November 2013, she was much more committed to acceptance of the help offered by the intervener. She was receiving counselling and the child was enrolled at playgroup and a day-care centre.[197] The intervener was also monitoring some of the child’s changeovers.[198]
[197] Mother’s affidavit, paras 271-282
[198] Ms W’s second affidavit, paras 33-34
At the time of trial the intervener was satisfied with the mother’s physical and emotional care of the child.[199] Both caseworkers confirmed in cross-examination they were then satisfied with the mother’s co-operation with them, which evinced a marked change in the mother’s attitude.
[199] Ms W’s second affidavit, para 59
The intervener’s satisfaction with the mother’s co-operation has, however, since waned to some degree. While the mother continues to accept domestic violence counselling, she has not availed herself of help from a social worker at the Child Protection Counselling Service.[200] The mother’s recent change of residence caused the cessation of the child’s attendance at playgroup and the temporary interruption of the child’s attendance at day-care, but the intervener’s caseworkers intend helping the mother to enrol the child in another day-care centre closer to the mother’s current place of residence.[201]
[200] Father’s third affidavit, pages 18/47, 20/47
[201] Father’s third affidavit, pages 20/47, 21/47, 34/47, 35/47
The intervener’s caseworker is currently “concerned in relation to the mother’s lack of active engagement with support services”,[202] but not so worried as to cause the intervener to change the proposal for the child to remain living with the mother. The intervener intends to continue “work[ing] with the mother to support [the child] in her care”.[203]
[202] Father’s third affidavit, page 22/47
[203] Father’s third affidavit, page 22/47
The parties agreed the intervener’s continuing supervision of their family was advantageous, albeit for different reasons. The mother felt supported and expected she would be protected against future false allegations by the father. The father was re-assured the child would be protected from the risk of harm posed to her by the mother whilst the intervener remained involved. The intervener’s unequivocal commitment to the family will therefore be an important safety net for the child and will satisfy both parties.
Professor A was engaged as a single expert psychiatrist in the proceedings at the request of the father because he was concerned about the mother’s current psychological stability and any consequent deleterious effect upon her parenting capacity.
It is common ground the mother experienced unstable psychological health in the past, but the evidence of Professor A proved the resolution of that problem. The professor consulted with the mother and conducted some psychometric testing with her, from which she concluded:[204]
…does not have prominent dysphoria or depression, or a clinical diagnosis of depression or anxiety disorder.
…no features of schizophrenia or other psychotic disorder. There is no clinical diagnosis of paranoia.
…no evidence of misuse or drugs or alcohol.
…does not have any current suicidal ideation…
Her results do not indicate clinical levels for diagnosis of any psychological or psychiatric disorder.
The mother has not (sic) psychological or psychiatric conditions and therefore her parenting capacity is not affected.
[204] Professor A’s affidavit, Annexure A (pages 11-12)
The professor discounted any reasonable prospect of false results through dishonest self-reports by the mother because a psychometric test was conducted to confirm the absence of malingering.[205] The results of that test enabled the professor to conclude:[206]
…there was no attempt to present an unrealistically favourable impression in completing the test.
[205] Professor A’s affidavit, Annexure A (pages 10-11
[206] Professor A’s affidavit, Annexure A (page 12)
The professor strongly adhered to her opinions under cross-examination.
The professor acknowledged the risk of recurrence of the mother’s past psychological conditions, but asserted the risk was “not significant”. The counselling the mother is now receiving under the auspices of the intervener will diminish that risk even further. I accept her evidence.
Conclusions and orders
The presumption of equal shared parental responsibility does not apply because there is indisputable proof, and therefore reasonable grounds to believe, the father engaged in family violence towards the mother (s 61DA(2)).
Equal shared parental responsibility could still be allocated to the parties, albeit not presumptively, if the child’s best interests dictated that outcome, but they certainly do not. The parties are unable to communicate effectively. Even the past use of a communication book did not overcome the difficulty. The mother agreed with the proposition put to her by the father’s counsel during cross-examination that there had been “a complete lack of co-operation [between them] in parenting since separation”.
The Family Consultant described the conflict between the parties as “unrelenting” and she perceived it had deteriorated rather than improved over time. Even when the child was admitted to hospital the parties could not contain their enmity for the child’s sake. The parties involved solicitors and the police to adjudicate their rights to be present at the hospital and their animosity played out sometimes even in the presence of the child and hospital staff. Neither seemed to have any remorse for the scenes they created.
The parental conflict is too pernicious to enable the parties to exercise equal shared parental responsibility for the child in the manner required by law (s 65DAC). So much was not in doubt. The mother proposed she have sole parental responsibility, the father proposed he have sole parental responsibility, the Independent Children’s Lawyer proposed the mother have sole parental responsibility, the intervener proposed the mother have sole parental responsibility, and the Family Consultant recommended the residential parent have sole parental responsibility.
Clearly, the party with whom the child primarily lives should be allocated sole parental responsibility.
The child should live with the mother. That determination accords with the submissions of the mother, intervener, and Independent Children’s Lawyer. It also accords with the recommendation of the Family Consultant.
The mother is the child’s primary attachment figure, the child has historically lived principally with her, and the evidence does not justify any conclusion that the child’s physical or psychological safety or security is unduly compromised in the mother’s residential care.
The father’s asserted superior capacity to care for the child’s physical needs is substantially outweighed by his impaired capacity to provide for the child’s emotional needs.
Accordingly, orders are made for the child to live with the mother and for the mother to have sole parental responsibility for her.
Although the intervener advocated for the allocation of sole parental responsibility for the child to the mother, he also proposed that the allocation be subject to the mother’s compliance with other orders, the effect of which was to require the mother’s submission to the intervener’s authority and directions for another 18 months.[207] The Independent Children’s Lawyer sought an order to similar effect.[208]
[207] Response filed 16/1/14, Alternative A, Orders 2, 4, 5, 7, 8, 10
[208] Exhibit ICL9, Order 7
It should be observed the intervener expressly rejected the notion that he/she share parental responsibility for the child with the mother. If the intervener disavows any share in the exercise of parental responsibility for the child, what then is the statutory imprimatur for orders that curtail the exclusive exercise of parental responsibility by the adult upon whom it is conferred?
The Independent Children’s Lawyer conceded there was no power to make the order he proposed and it was therefore abandoned.
The intervener did not abandon the orders he proposed, although he conceded there was no clear statutory premise for the orders. It was posited that ss 64B(2)(i) or 68B of the Act might provide such power, but the argument was not comprehensively advanced and the Court’s attention was not drawn to any authority to support the submission. It would be unwise to attempt to reach a concluded view about the ambit of the Court’s power in the face of such limitations.
The intervener’s application for such orders is dismissed because it is illogical, not because of any concluded view about statutory power.
The meaning of “parental responsibility” is defined by the Act to mean “all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B).
If it is appropriate to confer the totality of parental responsibility for the child exclusively upon the mother, as is conceded by the intervener to be proper, it follows that she has all of the duties, powers, responsibilities and authority for the child. Such an order is made pursuant to ss 65D and 64B(2)(c) of the Act. It is not then logical to derogate from the grant by grafting onto the grant a series of other orders that purport to curtail the mother’s exercise of all such duties, powers, responsibilities and authority. The mother is either worthy of exercising sole parental responsibility or she is not.
Such a situation may be contrasted with other forms of allocation of parental responsibility for the child which are open to the Court, such as:
(a)The allocation of parental responsibility to the mother in respect of some, but not all, “major long-term issues” relating to the child (s 4). Some other person, such as the intervener, could then be the recipient of and exercise all of the residual parental responsibility for the child which is not allocated exclusively to the mother; or
(b)The allocation of “equal shared parental responsibility” for the child to two or more persons, such as the mother and intervener, who would then be required to consult and make joint decisions about “major long-term issues” in respect of the child; or
(c)The allocation of merely “shared parental responsibility” for the child to two or more persons, such as the mother and intervener, who would then be able to make either joint or unilateral decisions about all aspects of the child’s care, welfare, and development.
But the intervener expressly rejected each of those alternatives.
The refusal to make the supplementary orders sought by the intervener which purported to qualify the allocation of parental responsibility to the mother does not and should not imply the family will not benefit from the continued involvement of the intervener in their affairs.
The mother and father both embraced the idea of the intervener’s future involvement with their family. If they do not sustain that enthusiasm and circumstances warrant, the intervener is still bound and empowered by the statutory construct under the Children and Young Persons (Care and Protection) Act 1998 (NSW). Orders are, however, made requiring the intervener’s involvement in exchanges of the child between the parents for the next six months, consonantly with the intervener’s application.
Attention must therefore turn to the manner in which the child interacts with the father, which is unconstrained by the considerations mandated by s 65DAA of the Act, since equal shared parental responsibility is not allocated to the child’s parents.
Under the interim orders the child has been spending time with the father every weekend, but that is untenable as a permanent arrangement. It is neither reasonably practicable nor in the child’s best interests.
The driving time between the mother’s home on the Central Coast of NSW and the father’s home in suburban Sydney approximates two hours, according to the mother. She was not contradicted by the father. The amount of travel the parties will endure with the child to ensure continuity of her relationships with both parents is more commensurate with fortnightly exchanges of the child. That view had express support from the mother, the Independent Children’s Lawyer, and the Family Consultant.
The father instead envisaged the child living with him and spending two hours of supervised time with the mother each week, but it would not be in the child’s best interests or reasonably practicable for the child to undertake a return road journey of four hours duration every weekend to spend two hours of supervised time with the mother for the remainder of her minority. Conversely, since the child will live with the mother, nor would it be practicable or desirable for her to travel from the Central Coast to Sydney to visit the father every weekend for the remainder of her childhood.
The Family Consultant recommended the child spend alternate weekends with the father. She did not consider the child’s meaningful relationship with the father would deteriorate by reducing the frequency of their interaction from weekly to fortnightly because the child is near the very end of the maturation period in which she forms her psychological attachments. She has a sufficiently developed memory of the father to adjust to that change. I accept that evidence as correct.
The Family Consultant acknowledged she had not given detailed thought to the child spending block periods with the father, but there was nothing to suggest the child was incapable of that level of interaction. The child spent a couple of weeks staying with the father in October/November 2013.
The mother acknowledged the child could spend occasional holiday periods with the father. The intervener and Independent Children’s Lawyer also both proposed it. Although the Independent Children’s Lawyer suggested the child’s holiday time with the father should not begin for 18 months,[209] there was no obvious evidentiary basis for that proposal. I accept the child’s relationship with the father will benefit from them spending occasional holiday periods together without any hiatus.
[209] Exhibit ICL9, Order 3(ii)
I reject the mother’s proposal that the time spent by the child with the father should be supervised. Her proposal in that regard was not supported by either the intervener or the Independent Children’s Lawyer. It was mooted with the Family Consultant during her cross-examination, but she only considered it a “possibility” if it was likely the father would continue to subject the child to frequent bodily inspections and weight checks. As the Family Consultant acknowledged, though, the imposition of supervision on an indefinite basis would surely cause impairment of the child’s relationship with the father over time.
The mother’s proposal for supervision was premised on the Court finding the father made “unfounded allegations of the mother intentionally harming the child”. No such finding was made. In fact, the father did not even eventually make such an allegation. He maintained that the injuries the child suffered occurred through only the mother’s inadequate supervision of the child.
The Family Consultant suggested in the Family Report that the child’s time with the father should be supervised if the Court finds the father made false allegations against the mother.[210] In all probability the father did make a false allegation about an injury to the child’s arm on 26 August 2012, but I remain unpersuaded that falsehood of itself requires the child’s supervision when with the father. Supervision might prevent future false reports of injuries by the father, but the imposition of supervision is a disproportionate remedy for that possibility. As the intervener correctly submitted, it is unlikely supervision would prevent the father from subjecting the child to bodily examinations and would surely cause the child’s meaningful relationship with the father to corrode.
[210] Family Report, paras 230, 236
The intervener proposed that the mother and father exchange the child between them on Friday changeovers at the intervener’s Central Coast office for the next six months,[211] as has been occurring since November 2013. Neither parent opposed that suggestion. It is a sensible way of maintaining the intervener’s involvement. Orders are made to that effect.
[211] Response filed 16/1/14, Alternative A, Order 19(a)
For changeovers that occur outside the office hours kept by the intervener’s staff, the venue will be a police station. It is usually undesirable for children to be exchanged at police stations but the past use of public restaurants has not been a sufficient deterrent to altercations between the parties. It is unnecessary for the parties and child to go inside the police station. The exchange can occur outside. If the parties later find they do not need the security of police close at hand they can agree on another venue that suits them.
For the first six months while the father collects the child from the intervener’s Central Coast office on Fridays, the orders provide for the father to return the child to the mother at T Suburb police station on Sundays so as to ameliorate the travel burden upon him. Thereafter, the orders require the mother to deliver the child to the Q Suburb police station, proximate to the father’s home, at the beginning of the child’s visits with the father and require the father to deliver the child to the Town I police station, proximate to the mother’s home, at the conclusion of the visits.
The orders provide for the child to communicate with the parties by telephone. The intervener proposed such an order,[212] but the mother, father, and Independent Children’s Lawyer did not. There was no evidence directed to the issue and no submission made about it. The proposal is attractive since it will offset the effect of decreasing the amount of time the child currently spends with the father. The prospect of unpleasant interchanges between the parents over the telephone remains, but that can be avoided through the parties using only a modicum of common sense.
[212] Response filed 16/1/14, Alternative A, Order 20
The father sought an order compelling the mother to attend a post-separation parenting program.[213] The time for useful participation in such a program has long since passed. It did not appreciably assist the father. If these proceedings have not been a chastening enough experience for the parties then nothing will be.
[213] Amended Response filed 31/1/13, Order 4
The intervener proposed an order compelling the mother to attend counselling and courses directed by the intervener.[214] No such order is made. There is no power to make such an unconditional final order because it is not an injunctive order under ss 68B or 114, not a child welfare order under s 67ZC, and probably not a parenting order under s 64B of the Act (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]).
[214] Response filed 16/1/14, Alternative A, Order 6
The intervener proposed an injunction restraining the father from subjecting the child to a “medical examination” without the mother’s consent, unless it was a “medical emergency”.[215] I decline to make the order because it is entirely aspirational and impossible to make it prescriptive and enforceable. Who decides what amounts to a medical emergency and why should that person’s opinion be binding?
[215] Response filed 16/1/14, Alternative A, Order 23
The intervener sought a raft of other injunctive orders against both the mother and father that are similarly aspirational and incapable of satisfactory prescription.[216] An additional vice in respect of those proposals is that they were not the subject of any cross-examination or submission. The orders are not made because the Court should not be expected to make orders that are overtly contentious when they have not been the subject of any evidence or argument. Nevertheless, some injunctive orders are made in an attempt to eradicate any concern about the child’s future exposure to corporal punishment or denigration.
[216] Response filed 16/1/14, Alternative A, Order 22
The father and intervener did not abandon their applications for the imposition of an injunction restraining the mother from allowing the child to have any contact with the maternal grandfather.[217] The mother sought the discharge of the interim injunction to that effect. Notwithstanding the dispute over that issue, it was not raised in either party’s cross-examination.
[217] Amended Response 31/1/13, Order 5; Response 16/1/14, Alternative A, Order 22(h)
Unchallenged evidence tends to suggest the maternal grandfather may not be a person of good repute. Independent records suggest past disharmony between the mother and maternal grandfather,[218] although the mother apparently now has a convivial relationship with him. The mother told the Family Consultant of her belief the maternal grandfather had been charged in respect of his association with persons “running child prostitution”.[219] Records inspected by the Family Consultant suggested the maternal grandfather was actually charged with sexual molestation of a teenage girl,[220] but the maternal grandfather denied that to the mother.[221]
[218] Family Report, para 37
[219] Family Report, para 200
[220] Family Report, para 201
[221] Mother’s affidavit, para 156
So far as the evidence goes, the maternal grandfather was certainly prosecuted for some offence because he was on bail as at April 2013.[222] The bail conditions then precluded him from being in the company of a child under the age of 16 years unless in the company of another adult responsible for the child. The mother is unaware of any conviction recorded against the maternal grandfather.[223] It is unknown whether the prosecution is pending or concluded, and if concluded, the nature of the outcome.
[222] Exhibit M7
[223] Mother’s affidavit, para 157
The most appropriate way to deal with the dispute in the absence of further elucidation is to impose a final injunction precluding the mother from allowing the child to be in the physical presence of the maternal grandfather unless supervised by her personally.
The remaining orders could not be the subject of reasonable resistance.
The intervener proposed several other orders but they were not mentioned in evidence, not mentioned in submissions, and were not the subject of patent consent by the other parties. The application for those residual orders is therefore dismissed.
I certify that the preceding three hundred and forty five (345) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 28 March 2014.
Associate:
Date: 28 March 2014
0
5
0