Martins & Sequeira
[2022] FedCFamC1F 925
Federal Circuit and Family Court of Australia
(DIVISION 1)Martins & Sequeira [2022] FedCFamC1F 925
File number(s): BRC 2616 of 2021 Judgment of: JARRETT J Date of judgment: 9 December 2022 Catchwords: FAMILY LAW – PARENTING – application for final parenting orders – where the respondent received medical advice that the child’s illness indicated the child may have been sexually abused – where the respondent formed an entrenched view that the applicant posed a risk of harm to the child – where subsequent specialist medical advice contradicted the first – where there was no other evidence of sexual abuse – where the evidence does not establish that the applicant poses an unacceptable risk of harm to the child – where the respondent maintains a fixed belief in the absence of evidence that the child is at risk in the applicant’s care – where the respondent lacks the capacity to meet the child’s emotional need for a relationship with the applicant – where the court orders a change of residence from the respondent’s care to the applicant’s care Legislation: Family Law Act (Cth) 1975 ss 4AB, 60CA, 60CC, 61DA, 65DAA, 121 Division: Division 1 First Instance Number of paragraphs: 115 Date of last submission/s: 6 September 2022 Date of hearing: 20 April 2022, 18 & 19 August 2022, 30 August 2022 Place: Brisbane Counsel for the Applicant: Mr Sorensen Solicitor for the Applicant: Dawson Lawyers Counsel for the Respondent: Ms Gajic-Pavlica Solicitor for the Respondent: Derek Legal Counsel for the Independent Children’s Lawyer: Ms McArdle Solicitor for the Independent Children’s Lawyer Carter Farquar Mediation & Family Law ORDERS
BRC 2616 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MARTINS
Applicant
AND: MS SEQUEIRA
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
JARRETT J
DATE OF ORDER:
9 December, 2022
THE COURT ORDERS THAT:
1.All prior parenting orders are discharged.
2.The applicant and the respondent have equal shared parental responsibility for decisions concerning the major long-term issues for X born 2019.
3.X live with the applicant.
4.X spend time with the respondent, subject to compliance with order 14 hereof, as follows:
(a)for a period of one month, supervised by B Services or other professional service provider as agreed on each Tuesday and Thursday from 4.00 pm to 6.00 pm (but more than two hours if the centre can facilitate it) with the cost of supervision shared equally between the parties and the supervision service shall be authorised to provide weekly supervision reports to the applicant, the respondent and any mental health practitioner engaged by the respondent upon request (with the person requesting those reports to be responsible for any costs involved in producing them);
(b)after the expiration of one month in accordance with order 4(a) above:
(i)on Tuesday of each week from 9am to 9am the following day;
(ii)on each alternate weekend from 3pm Friday to 4 pm Sunday;
(iii)on Mother’s Day from 10.00 am to 4.00 pm;
(iv)on the child’s birthday from 1.30 pm to 5.30 pm;
(v)on the respondent’s birthday from 10.00 am to 4.00 pm;
(vi)on Easter Sunday from 1.30 pm to 5.30 pm;
(vii)on Christmas Day from 1.30 pm to 5.30 pm; and
(viii)at any other time as agreed in writing between the parties;
(c)from 1 February, 2024 time arrangement continue as per order 4(b) and also include:
(i)for half the Term 1, Term 2 and Term 3 school holidays from after school on the last day of term to 4.00pm on the middle Saturday of the holidays;
(ii)for the end-of-year school holidays:
(a)from after school on the last day of term for a period of three weeks in odd numbered years; and
(b)from 4.00pm on 2 January for a period of three weeks;
(d)at any other time as agreed between the parties in writing.
5.For the purposes of paragraph 4, where changeover does not occur at the supervision service or X’s childcare centre, pre-school or school, changeover shall occur at a Children’s Contact Centre for the purposes of orders 4(a) and (b) or at C Shop at D Shopping Centre, Suburb E.
6.After the expiration of two months in accordance with orders 4(a) and (b), X shall communicate with the respondent by telephone or audio-visual media each alternate Sunday (on the non-visit weekend) between 5.30 pm and 6.00 pm.
7.The parties shall keep each informed of their current residential address and mobile phone number and notify the other party of any changes within 24 hours of such change.
8.The parties shall ensure that X attends only upon Dr F or another medical practitioner at G Medical Centre as her general practitioner, unless otherwise agreed between the parties in writing.
9.Only in the case of an emergency or by referral from her general practitioner is X to be presented at any other medical centre or hospital, unless otherwise agreed between the parties in writing.
10.Should X have an urgent medical issue or require hospitalisation, the party with the care of X shall contact the other party as soon as practicable and provide the other party with details of X’s location, diagnosis and prognosis.
11.The respondent is otherwise restrained from causing X to attend upon any allied health practitioner including psychologist, counsellor, therapist or social worker without the prior written consent of the applicant.
12.If a referral is made for X by her general practitioner, the party with care of X shall contact the other parent as soon as the referral is received and provide details and a copy of the referral.
13.By this order, the parties authorise any treating medical practitioner or allied health professional to release X’s medical or health information to each party (with the person requesting that information to be responsible for any costs involved in producing them).
14.The respondent shall continue to engage with and attend upon her treating clinical psychologist, counsellor and/or psychiatrist from time to time as recommended by them and comply with all treatment and/or medication recommendations made by them and the applicant be authorised to contact the respondent’s treating practitioners to confirm her attendances and compliance with any recommendations by those practitioners.
15.By this order, the parties authorise any school, day care providers, or extracurricular activity provider attended by X to give each parent information about X’s progress and other related activities and supply them with copies of reports, photographs, certificates, and awards obtained by X (with the person requesting that information to be responsible for any costs involved in producing them).
16.Pursuant to s 121 of the Family Law Act 1975 (Cth), leave is granted to the parties and their legal representatives to provide a copy of these orders to:
(a)any school, education institution or care provider;
(b)any treating medical practitioner, psychologist, hospital, or other health care professional that the Mother and child attend upon; or
(c)any government department or instrumentality;
that may seek or require to hold a copy of these orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988 (Cth).
17.The respondent is to provide to her treating medical practitioners referred to in order 14 above the following:
(a)a copy of the affidavit of Dr H filed 13 April, 2022;
(b)a copy of these reasons for judgement; and
(c)a copy of these orders.
18.The respondent is restrained and an injunction hereby issues restraining the respondent from making an application for a Country J passport to be issued for X without the written consent of the applicant.
19.Within seven days of the date of these orders, the respondent shall give to the applicant any current passport for X in her possession and the applicant shall retain X’s passports, whether from Australia or Country J.
20.The child remain on the Australian Federal Police Family Law Watchlist until X commences primary school.
21.Within 21 days of the making of these orders, the respondent shall pay to the applicant the amount of $13,650.00, and if the respondent is unable to pay this amount in a lump sum the respondent shall enter into a pay by instalments agreement on terms as agreed between the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This case concerns the parenting arrangements for X, currently aged about three years and the poor co-parenting relationship that exists between her parents. The applicant (X’s father) and the respondent (X’s mother) never had more than a fleeting relationship with each other and did not live together for anything other than a very brief period. It is uncontroversial that they do not trust each other with X in the way in which parents ought, if they are to co-parent successfully.
X lives with the respondent and spends time with the applicant. In broad terms, the applicant seeks orders that X lives with him and spends time with the respondent. The respondent seeks a continuation of the current regime, more or less. I have the benefit of an independent children’s lawyer, who supports the applicant’s position.
The issues
When the application was listed for trial in February, 2022 the respondent’s case was that X was at an unacceptable risk of sexual abuse from the applicant. Less clear was whether she was alleging that there was an unacceptable risk of physical, but non-sexual, harm to X from the applicant. By the conclusion of what was to be the first day of the trial in April, 2022 she had conceded that the evidence did not establish the unacceptable risk for which she contended. Orders made on that day carried a notation that the respondent no longer alleged that the applicant posed an unacceptable risk of harm to X.
Subsequently, the respondent has conducted her case on the basis that she no longer believed that the applicant represented an unacceptable risk of sexual abuse, or any other form of abuse or violence to X.
However, notwithstanding that concession by the respondent, the applicant persists with his case that X should live with him and spend time with the respondent. He contends that the court should not accept that the respondent’s change of belief is genuine and that in all likelihood she will continue to pursue risk allegations in one form or another against him and further impose restrictions and instability upon X’s relationship with him.
Central to, although not determinative of the outcome in this case then, is:
(a)a finding about the authenticity of the respondent’s now stated belief that X is no longer at risk of sexual abuse from her father; and
(b)a finding about the respondent’s now stated belief that X is no longer at a more general risk of physical harm from her father.
I have concluded that the respondent’s evidence about the change in her beliefs about each of those issues is not reliable and does not represent her true state of mind. She has not truly abandoned her belief that the applicant presents an unacceptable risk of sexual or other physical abuse to X. I have explained why I reach that conclusion later in these reasons.
In light of that finding and, amongst other matters, the evidence from the family consultant who prepared a report pursuant to s 62G of the Family Law Act 1975 (Cth) for the court’s assistance, I have concluded that X should reside primarily with the applicant and spend time with the respondent as the independent children’s lawyer proposes. What follows are my reasons for those conclusions.
The applicant’s proposals
The final orders sought by the applicant in his amended case outline filed on 11 August, 2022 provide for:
(a)X to live with him;
(b)for him to have sole parental responsibility for her; and
(c)for her to spend a graduating regime of time with the respondent commencing with supervised time and culminating in alternate weekend time, one evening meal each week when X commences school and half of all school holidays.
His orders also provide for telephone and audio-visual contact and other special occasion time between X and her mother. He seeks a range of other orders dealing with various matters. He also proposes alternative living and spending time arrangements for X in the event that the court concludes that he presents an unacceptable risk of harm to X.
The respondent’s proposal
The respondent has proposed orders that are set out in a minute of order handed up by her counsel on the final day of the trial. By that minute, she seeks that:
(a)the parties have equal shared parental responsibility for X;
(b)X live with her;
(c)X spend time with the applicant:
(i)for the first three months from the date of the order, every second weekend, concluding Sunday evening, and two hours every Tuesday and Thursday;
(ii)from the end of that three month period until her fourth birthday, every second weekend, concluding Sunday evening, and one overnight a week;
(iii)following her fifth birthday, every second weekend, concluding Monday and an overnight every other Wednesday afternoon;
(d)X spend special occasions with her parents broadly evenly, alternating even and odd numbered years;
(e)X attend a child psychologist for the limited purpose of “exploring any feelings that she has while nurtured in two households and guide the parents in respect of the best ways to nurture the child”;
(f)both the applicant and the respondent engage a mental health professional to assist in their capacity to manage the parenting arrangement;
(g)she be permitted to travel to Country J with X for four weeks in 2022 or 2023, and for four weeks in total once per year otherwise;
(h)neither party consume or be under the influence of illicit drugs while caring for X;
(i)neither party be under the influence of any prescription medication which may affect their ability to operate a motor vehicle while transporting X; and
(j)other various orders including typical restraints and authorities regarding how parents are to treat a child and what information they may access.
There appears to be a drafting error in the progression of X’s time arrangements in the minute handed to me. According to those proposals, X’s time with her father would progress in three tranches. First, the first three months following my order, then until X turns four and then following X turning five. What time she would spend with the applicant between her turning four and turning five is unexpressed.
I doubt the respondent intentionally proposed that X spend no time with the applicant between her fourth and fifth birthdays. Therefore, I will read paragraph 5(b) in her minute as “until the child turns five (5).” This is my best guess at her intentions – I am not certain of them, but nothing turns on this now.
The respondent also proposes that I permit her to take X to Country J. Her counsel said during submissions that Country J is a Hague Convention country. Although no party led any evidence of this before me (presumably because it is uncontroversial), the Commonwealth Attorney-General’s website lists countries in respect of which the Hague Convention on the Civil Aspects of International Child Abduction is said to be in force with Australia. I accept that the convention is in force between Country J and Australia. However, I am uninformed about the effectiveness of Country J’s Central Authority when extracting children unlawfully taken there. That the Convention is in force between Australia and another country does not conclusively answer whether a child may be retrieved from that country easily or at all and what risks might nonetheless be presented by travel to that country.
The ICL’s Proposal
In a minute of order handed up by his counsel at the conclusion of the trial, the independent children’s lawyer proposes that:
(a)the applicant have sole parental responsibility for X;
(b)X live with the applicant;
(c)subject to the respondent engaging in on-going treatment by a mental health professional and refraining from using medicinal cannabis within a 24 hour period before and during any period X spends with her, X spend time with the respondent as follows:
(i)for the initial month, supervised each Tuesday and Thursday;
(ii)subsequently, each alternate weekend and every Tuesday overnight with special occasion contact;
(iii)following 1 February, 2024 when X will be commencing prep, the time between X and the respondent expand to include half of school holidays; and
(iv)after a period of two months, X speak with the respondent electronically between 5.30 pm and 6.00 pm each alternative Sunday; and
(a)X see a specified general practitioner who is not the general practitioner who indicated she may have been sexually abused;
(b)the respondent seek ongoing psychological support and provide her mental health professional with these reasons, my orders and an expert psychiatric report prepared in the course of the proceedings; and
(c)other various orders common in this jurisdiction.
The context of the present application
The applicant is currently 39 years of age. He was born in Australia and lives in K Region of New South Wales in a two bedroom unit. He presently lives alone.
He is employed full-time and works 37.5 hours per week. He describes his working arrangements as “flexible”. In evidence, he described his position as a “manager role” and as a shared role. He has worked for his current employer for about 12 years and has the capacity to reduce his work to 3 – 4 days per week.
The respondent is currently 33 years of age. She is a Country J national. She has resided in Australia since about 2015. She is single and is self-employed. She works on average 20 hours a week, with her income supplemented by a Special Benefit for X from Centrelink.
Currently X lives with the respondent in a location not too far from the applicant’s residence. No other persons currently occupy the property in which they live.
The parties had a brief relationship in 2018. They met while travelling to Country J – the applicant for a holiday and the respondent to return home from Australia for a brief period. They commenced a liaison there and conceived X.
Soon thereafter, the applicant returned to Australia alone. The respondent travelled to Australia in late 2018 and the parties recommenced their relationship. The relationship was fraught. The applicant describes it as “on-again, off-again” and the respondent describes it as “unstable”.
The parties’ intimate relationship ceased within approximately four months of the respondent’s return to Australia. They nonetheless continued a friendship.
The respondent did not have a right to reside permanently in Australia. The applicant says that he assisted the respondent to apply for a “Partnership Visa”. He loaned the respondent $2,500 for the cost of the visa and helped her complete the forms. He must have sponsored her for the purposes of the grant of the visa.
The applicant says that he assisted the respondent to find suitable accommodation and prepare the home for the arrival of the baby. I accept that he contributed to the first six months of the rent on the home.
Both parties make allegations about the other and their behaviour in the period leading up to X’s birth. The applicant says that throughout the pregnancy, he saw the respondent nearly every day. He says that he observed the respondent to smoke marijuana on each of these days. He says that he repeatedly asked the respondent to stop using marijuana because he was concerned at the harm it may do to the baby. Although he says that the respondent was going to stop smoking, aside from approximately one week, she did not stop. The respondent says that she and the applicant both smoked cannabis regularly but that she stopped smoking and drinking alcohol when she found out when she was pregnant. She says that she no longer smokes cannabis. However, it is uncontroversial that the respondent uses cannabis regularly in the form of prescribed medicinal cannabis.
The applicant says that throughout the pregnancy, the respondent was emotionally volatile and her behaviour was erratic. He says that whilst there were times of calmness, there were also times when the respondent became enraged and yelled at him. The parties would exchange abusive text messages.
The respondent says that during her pregnancy the applicant often put her down and made her feel afraid for her life and her future. According to her evidence, he said things like “If you don’t stop crying, I’ll push you out of the car” while he was driving on the motorway. She gives no specific examples of such behaviour upon which I could base any particular finding.
The respondent swears that the applicant punched her in the stomach twice while she was pregnant and both times, he pretended it was an accident. She says that he often suddenly came at her, pretending to punch her in the womb. Again, she gives no particulars of these occasions, nor of any medical assistance she might have sought when he allegedly punched her. I do not accept her evidence about this.
The respondent says that the applicant often drank alcohol to excess. She says that at nearly every event they went to together, the applicant ended up passing out from drinking. She further said that when he was drunk, the applicant often became aggressive and violent. She says that on one occasion he yelled at her, “If you don’t shut up, I will punch you in the face”.
There is no dispute that the applicant attended pre-natal classes with the respondent prior to X’s birth, but that he would take alcohol to the birth classes at the hospital and after X was born.
In the early stages of these proceedings, the applicant’s ongoing use of alcohol was an issue of concern for the respondent. Her concerns were well founded having regard to the applicant’s driving history and the text messages annexed to the respondent’s affidavit of evidence-in-chief filed on 5 April, 2022 at MS1. A regime of testing for alcohol abuse was put in place, administered by the independent children’s lawyer and carried out by the applicant. The results were unremarkable and consequently, the applicant’s ongoing use of alcohol was not a feature of the respondent’s case before me.
I have the benefit of an expert psychiatric report prepared on 2 February, 2022 by Dr H psychiatrist, in respect of each of the parties. The applicant reported his history of illicit drug use to Dr H, including his use of cannabis and other substances. He reported regular alcohol use and Dr H noted historical alcohol related driving offences. Dr H recommended the following regarding the applicant:
• his relationship with alcohol needs to be managed;
• he must never use any illicit or non-prescribed drug again; and
• he may benefit from developing a stress management plan to cope with potential stressors arising in a future post-separation parenting arrangement with the respondent.
The applicant says he has used a particular illicit substance 5 times in his life. He admits to being charged with driving under the influence twice in his life, most recently in 2016. However, nothing in the evidence persuades me the applicant has a current substance abuse problem that would interfere with his parenting capacity. The drug and alcohol testing put in evidence by the independent children’s lawyer bears that out.
Turning to the respondent, Dr H noted two key issues:
•the impact of recurrent cannabis intoxication on her mental state; and
•the impact of anxiety and/or depressed mood on her mental state.
Her cannabis use is particularly concerning. In his report, Dr H said:
she must never use any illicit or non-prescribed drug ever again […] because of the increased risk of psychosocial stressors linked to cannabis use, and the risk that this psychoactive substance could trigger recurrent anxiety and/or depression and also result in addiction [an inability to stop using it].
The respondent has regularly returned drug tests showing the presence of the active intoxicating compound in cannabis. Her evidence is that she has a prescription for medical marijuana from a doctor in Western Australia. There is no explanation offered for why the respondent decided to use a doctor in Western Australia rather than her usual doctor to seek her prescription. She did not suggest that she had an ongoing therapeutic relationship with that doctor or any other explanation as to why she would not simply get the medication prescribed by her own doctor or a doctor where she lived. It begs the conclusion that she considered she was most likely to get a prescription to legitimise her drug use from that doctor. There is no evidence that the prescribing doctor was or is aware of her mental health history as given to Dr H.
In any event, that she has a prescription for medical marijuana does not answer Dr H’s concern that the drug may exacerbate her anxiety or depression. Dr H reiterated in cross-examination that cannabis use is contraindicated for a person with the respondent’s mental health history. He went on to comment that it was important for the doctor who prescribed the medication to have a full understanding of the respondent’s history. The respondent’s counsel accepted during submissions that an injunction on illicit substance use surrounding X’s care should include prescribed cannabis as well.
Some principles
Part VII of the Family Law Act (Cth) 1975 provides the relevant statutory framework within which the court must determine the parenting orders to make in contested proceedings. The court must have regard to the best interests of the children as the paramount consideration in determining what parenting orders to make - s 60CA of the Act.
The best interest’s principle informs each of the orders that a court might be called upon to make concerning parenting, including orders concerning the incidence of parental responsibility, where children should live and with whom they should spend their time and communicate.
As to the issue of parental responsibility, s 61DA of the Act provides that when making a parenting order, a court must apply a presumption that it is in the best interests of the child or children concerned for their parents to have equal shared parental responsibility for them. That presumption will not apply if there are reasonable grounds to believe that a parent of the child or children concerned either has engaged in abuse of a child who, at the time, was a member of the parent’s family or has engaged in family violence.
The presumption of equal shared parental responsibility
Pursuant to s 61DA, unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who was a member of the parent’s family, or family violence, I must presume that it is in X’s best interests for her parents to have equal shared parental responsibility for decisions concerning the major long term issues for her. Family violence is defined in s 4AB of the Act and includes preventing a family member from making or keeping connections with his or her family, friends or culture and repeated derogatory taunts.
The independent children’s lawyer submitted that, on the applicant’s evidence, the presumption would not apply. Between February and May, 2021 the respondent prevented X from spending time with the applicant. However, for the reasons I have given below, I consider that the respondent’s actions are best explained as her acting or attempting to act protectively towards X having regard to medical evidence that she received in February, 2021.
The applicant’s evidence includes a series of text messages sent to him by the respondent, including her saying:
(a)“You are the worst thing I’ve ever met”;
(b)“Idiot liar”;
(c)“Cheater Coward”;
(d)“Can you pretend you are dead?”
(e)“Asshole”;
(f)“Coward”;
(g)“Liar”;
(h)“You are a liar”;
(i)“Pretend you dead [Mr Johnson]. Don’t ever come back to us”;
(j)“I hate you”;
(k)“You are the worse [sic] person in the world”;
(l)“Idiotttttt.”
It is difficult to envisage a clearer example of repeated derogatory taunts. I find that the respondent has inflicted family violence upon the applicant.
On the respondent’s evidence, the applicant frequently abused her. There are few particularised allegations of acts constituting family violence in her evidence and her counsel submitted to me that the history of family violence did not bear on anything I had to decide in this case. However, it was clearly her evidence that their relationship was afflicted by family violence. The applicant’s evidence was consistent with the parties’ relationship being volatile with some interactions between them most likely meeting the description of family violence for the purposes of the Act.
The immediate effect of these findings is that the presumption in s 61DA(1) does not apply. However, it is still open to me to consider whether it is in X’s best interests for her parents to have equal shared parental responsibility for decisions concerning major long-term issues for her. Should I make such an order, I must consider the matters raised by s 65DAA of the Act.
Consideration
No party suggests that X will not benefit from a meaningful relationship with each of her parents. I am satisfied that she will. They each have much to offer her and she will benefit from a relationship with each of them.
Subject to what I express below about the respondent’s capacity to meet X’s emotional needs, I am not satisfied that there is a need to protect X from physical or psychological harm by reason of her being exposed to abuse, neglect or family violence as those terms are used in the Family Law Act. In this respect, I expressly enquired of counsel for the respondent during submissions as to her client’s position. I was told in clear terms that the respondent “was not running a risk case at all”.
Both the applicant and the independent children’s lawyer couched their submissions in language that suggested that each was arguing that X was at an unacceptable risk of harm from her mother and so s 60CC(2)(b) was engaged. However, if there is a risk of harm to X from the respondent and her beliefs, as I have found there is later in these reasons, it is not a risk of harm by reason of exposure to abuse, neglect or family violence, or at least not clearly so. I prefer to deal with these arguments when considering the respondent’s capacity to meet X’s emotional needs.
There are no views expressed by X about her parenting arrangements that the court should consider – something entirely unsurprising given her age.
It is uncontroversial that X has a good, strong and positive relationship with each of her parents. She most probably perceives the respondent to be her primary care giver given her historical care arrangements but the author of the s 62G report, Ms L, thought that X had secure attachments to each of her parents. That she has those relationships and attachments is a credit to both of these parties.
I am satisfied that each parent has taken all steps possible to spend as much time and communicate with X as they might have. Neither has failed to participate in decision making for her when presented with an opportunity to do so. Both parents have fulfilled their obligations to support X as fully as possible.
There is no practical difficulty or expense for X spending time with and communicating with either parent on any of the competing proposals before me.
Neither party suggested that X’s maturity, sex, lifestyle and background, her cultural background or those of either party required any particular consideration.
In a general sense each parent exhibits an appropriate attitude towards X and to the responsibilities of parenthood, although it is the applicant’s case that the respondent does not foster, encourage or facilitate X’s relationship with him to the extent or in the way that is to be expected.
As I have recorded earlier in these reasons, initially the respondent contended that X was at an unacceptable risk of sexual harm from the applicant. When the case came before me on 20 April, 2022 for what turned out to be an unsuccessful attempt to hold a trial of the application, the respondent resiled from those allegations. Her formal position, put by her counsel and expressed by her in oral testimony now, is that she no longer believes that the applicant presents an unacceptable risk of harm to X by reason of sexual or other abuse.
It is now uncontroversial that the evidence simply does not demonstrate that X is at any such risk from the applicant. However, I am far from persuaded that the respondent’s claims that she has put aside her concerns that the applicant presents such a risk are genuine.
The respondent’s fears were initially based upon X presenting with a skin condition that was evident around her genital and anal areas. In early 2021 the respondent took X to her general practitioner, Dr M, for an otherwise routine visit. The respondent was aware of X’s skin condition and the doctor observed it. There was a consequential follow up visit two days later. Dr M gave evidence that he considered that whilst such a condition in children was common, the confinement of the condition to X’s genital and anal areas suggested that there was a “high risk” of X having been sexually abused in some way. Dr M made a report to the relevant child protection authorities in both New South Wales and Queensland. At one point, a police officer from New South Wales contacted him but he did not engage with the officer. Dr M said that he thought that the approach was not through the proper pathway.
In any event, it is uncontroversial that the relevant agencies investigated and found the concerns to be unsubstantiated. The respondent, however, was unconvinced.
On 19 April, 2021 the independent children’s lawyer filed an affidavit deposing to his conversations with an officer of the Joint Child Protection Response Program in New South Wales. In brief, he was told that the relevant officer had spoken with the respondent about her concerns and told her that they were found to be of no substance and no further investigation was undertaken. The maintenance of the respondent’s belief in light of that information becomes less justifiable. There was no attempt by her in her evidence or in the conduct of her case to demonstrate that the investigation was inadequate or flawed.
So too, it seems that Dr M remained unconvinced. He gave evidence before me. He seemed firm in his conviction that there had been some inappropriate behaviour towards X. His cross-examination also revealed that he was concerned that the child safety authorities or the Police did not contact him after his initial report to relay their findings. He did not consider that the matter had been investigated at all. He did not know that there had been inquiries made and conclusions reached by the relevant authorities.
Following his examination of her, Dr M referred X to a paediatrician. Dr N qualified as a paediatrician in the 1990s and has practiced as such ever since. He gave evidence before me. He was asked about the prevalence of the skin condition in children by counsel for the respondent:
[Dr N], would you describe the diagnosis of [the skin condition] as a common childhood viral illness? Very common.
Very common. And would it be common to be found just on the child’s genital area as opposed to all over their body? Correct. It’s often a waterborne, bath borne pox virus. It behaves like a little wart, and my children had it. It’s an incidental finding in many, many children who come through the rooms. And to get it around the bottom area or the genital area is not uncommon.
I prefer the evidence of Dr N to that of Dr M about the prevalence of this particular condition in children and where it can manifest. Whilst I accept Dr M’s opinion that the virus responsible for the condition can be transmitted through sexual contact between an adult and a child, I reject his evidence that without more, the condition suggested that there was a “high risk” that X had been sexually abused. To be fair, in cross-examination Dr M said this:
And you communicated that to the mother, didn’t you? You told the mother that ---?--- I did communicate straightaway.
--- there is a high risk of sexual abuse having been done to [X]? --- Yes, yes. Actually, is my role actually to communicate the mother that I was going to report the whole case. When she left the room she knew it. Even if she – if she agrees or not it’s – I have to communicate the Child Protection Service straightaway so that’s exactly what I’ve done.
Yes. So you told her that – just to be very clear, that there was a high risk of sexual abuse having been done to [X] because of the concentration of where the symptoms were? --- I told her that and, of course, with the story I was told I got even more concerned so, of course, I contact every authority as I supposed to.
(my emphasis
Just what the story was that Dr M was referring to is not clear from the evidence.
Dr N consulted with X and the respondent twice in early and mid-2021. By that time, the respondent was also raising claims about changes in X’s behaviour after spending time with the applicant and suggesting that those behaviours settled if she spent no time with him. The respondent reported to Dr N her observations about changes in X’s behaviour around times of contact with the applicant, frequent awakening and reluctance to go to her father’s care. He was asked to give advice in respect of the management of those matters. Dr N suggested X would benefit from a personal counsellor to assist her with coping with her parent’s conflict but otherwise proposed no particular interventions. The respondent was not satisfied with that outcome from Dr N.
17 February, 2021 began a period of the respondent preventing X from seeing the applicant. The applicant commenced these proceedings on 28 February, 2021. On 20 April, 2021 consent orders were made for X to begin spending supervised time with the applicant. Upon the respondent resiling from her case that X was at an unacceptable risk of harm in the applicant’s care on 20 April, 2022, I ordered that the requirement for supervision be discharged and unsupervised time commence.
The effect of the respondent’s submissions were that her fears for X were created and encouraged by her general practitioner and other medical practitioners who advised her to cease contact between X and the respondent. She now says that, having considered the lack of any evidence corroborating those concerns, she no longer fears for X in the applicant’s care.
I have no doubt that the respondent’s concerns have been encouraged by her medical advice. Having regard to Dr M’s evidence it was not unreasonable for the respondent to believe that X was at risk of sexual abuse from the applicant. Her evidence is that she has also suffered significant and traumatic sexual violence in her past, which had a bearing upon her decision-making. However, though Dr M was ultimately mistaken, the damage was done; since that consultation in February, 2021 and until at least April, 2022 the respondent carried a belief that X had most likely been sexually abused. Given that she immediately ceased facilitating time between X and the applicant, it must be the case that she thought it likely that he was the perpetrator.
In this context, much of the respondent’s conduct is understandable. I accept that, at least initially, the respondent should be seen as acting protectively. However, for the reasons that follow, I do not consider that the respondent has abandoned her belief that the applicant presents a risk of harm to X, either of sexual or other abuse or violence. Her actions and statements demonstrate the contrary.
As I have recorded above, the evidence shows that the respondent was informed of the outcome of the police investigation in April, 2021. Despite that, she remained steadfast in her views. She was interviewed for the purposes of the family report in very early August, 2021. At that time she told the family consultant:
59. [The respondent] argued that it was in [X’s] best interests to live with her. She was uncertain about the time, if any, [X] should spend with the [applicant], particularly since [X’s] psychologist recommends no time because the experience is apparently traumatic for [X].
60. I understand from the [respondent] that the psychologist formed the view that time was traumatic for [X] based on her presentation since commencing supervised time with [the applicant]. [The respondent] said [X] experiences nightmares, and will wake up holding her vagina, saying ‘ouch’. When asked who hurt her vagina, [X] is alleged to say “my Daddy”.
61. [The respondent] explained that [X] spending time with the [applicant] was traumatic because “I believe he has been doing sexualised things to [X]”. [The respondent] said she formed this view when [X] was spending unsupervised time with her father. She said she would check [X] over including her vagina on her return. She explained that she did this because the [applicant] had told her that he was sexually abused as a child, and was not treated for this. She told me that research she had completed informed her that persons untreated for trauma are more likely to be aggressive.
62. [The respondent] further informed me that during one of her inspections of [X], she noted she had a red vagina, which I understand [the applicant] also observed. [The respondent] not knowing if this was normal, reported she was a bit concerned, and consequently both she and the [applicant] attended upon a paediatrician, who said it looked “pretty normal”. [The respondent] indicated her suspicions were alerted when [the applicant] made the comment to the paediatrician, “I think her vagina is a bit weird, too red. Not that I look at it too much”.
63. [The respondent] also shared with me other experiences she had consistent with what she wrote in her written material that caused her to be alarmed and of the concern [the applicant] was sexually abusing [X]. For the best account of this, I respectfully refer the Court to [the respondent]’s Affidavit filed 19 April 2021.
64. When informed that what she had detailed thus far does not confirm or possibly even indicate [X] has been sexually abused, and that the authorities do not share her concerns, [the respondent] became upset and seemingly frustrated. She believed [the applicant] was capable of manipulating others, and referred to her general practitioner who diagnosed the rash on [X’s] vagina as [skin condition] as confirming X had been sexually abused. She did not accept that it was a common childhood viral illness.
65. [The respondent] reported that she would not believe findings the Court might make that [X] has not been sexually abused. She stated, “I believe it happen”. She added that [X] was also at risk of physical harm from the [applicant], and referenced observing [the applicant] whilst getting [X] out of her car seat, whispering to her and taping (sic) her on the forehead with his finger. She said when [X] returned to her care, [X] said, “shh shh Daddy”. [The respondent] also said the [applicant’s] neighbour has called her many times in the past saying she hears [X] saying, “No Daddy No Daddy”.
66. When I endeavoured to explore with the mother the impact, if any, [X] spending no time with her father might have upon her, particularly given [X] appears to experience time with her father positively, [the respondent] said [X’s] psychologist has told her that victims of abuse will play well in the presence of their abuser. [The respondent] stressed that [X] has been manipulated by her father for a long time, and that [X] only makes disclosures to her or her godmother.
I have set these passages out in full to underscore the entrenched nature of the respondent’s view about X’s interaction with her father. Of considerable significance is that the family consultant challenged the respondent’s views and despite her suggesting that the evidence did not confirm or possibly even indicate X has been sexually abused, the respondent adhered to her views.
Despite her now disavowal of her unacceptable risk case, in her affidavit of evidence-in-chief filed on 4 August, 2022 the respondent swears that she did not understand that the allegations of unacceptable risk were withdrawn when her representatives said that to me on 20 April, 2022. What she did believe on that date is unclear, but the tone of her evidence suggests surprise on her part that her case in that respect had been abandoned.
Since resiling from her unacceptable risk position on 20 April, 2022 the respondent has behaved consistently with a belief that X was at risk in the applicant’s care, in at least the following ways:
·on 28 April, 2022 the respondent consulted with Dr N on a referral from Dr M. Her concerns on that occasion are summarised in Dr N’s letter to Dr M (exhibit 3) as follows:
I have tried to absorb the concerns. In particular, there were some events, considered predominantly retrospectively, from when she was around six months old. She had been in the presence of her father and on the day after her return, a bloody, mucoid stool was produced. The genitalia area on one occasion appeared to be erythematous. At another time in life and I believe late last year, there was a persistent, over six months or so, difficulty with management of [skin condition] at the buttocks area.
Of most concern to [the respondent] is the settledness, happiness and personality changes which she observes depending on whether [X] has been in contact with her father recently or, in a positive direction, if she has not been in contact with her father for a period. I was shown video of self-stimulatory behaviour. I have explained that that is not specifically indicative of sexual abuse and can commonly occur in the age group.
·on 4 May, 2022 the respondent again consulted with Dr N and raised further matters with him that concerned her, namely:
[The respondent] presented with some concerns that she had not managed to relay at a prior appointment. These included references from [X] in respect to pain at her eyes and on the left side of head and a mark on the scalp. She was worried that this may represent a pathology from having been shaken. To my examination, I could not find an abnormality. Her tympanic membranes were clear. She has a congenital naevus at her scalp. An eye examination was normal. I could not identify pathology and gave reassurance.
[The respondent] discussed abdominal symptoms which have been lesser and you have investigated. I was shown a picture of a stool that had a particular colour and then another colour following a phone communication with her father. I could not infer any pathology from this and abdominal symptoms are not high at the moment.
I was shown a video of some temperamental tantrum like expressions at a kindergarten service and at her home.
[The respondent] discussed with me some behavioural expressions with frequent awakening and with [X] stating that she does not want to go to her father's. I explained that if there is any behavioural or psychological change that is a consequence of movement between the two households in that will have to be analysed by a psychologist and preferably that psychologist be nominated by the courts.
·on 18 May, 2022 she sent an email to Dr M’s office. In it, she discusses X having past stomach cramps that had abated until she spent unsupervised time with the applicant. She says that X said the applicant had punched her. That allegation is not sworn to by the respondent in her most recent affidavit;
·on 19 May, 2022 she attended upon Dr M by telephone and his notes refer to possible physical violence by the applicant towards X. Dr M confirmed in his evidence that these notes reflect issues raised by the respondent;
·on 20 May, 2022 the respondent sent instructions to Dr M’s office that “any new events and concerns has to be reported by the doctor or specialist, not me”;
·on 21 May, 2022 she attended a hospital emergency department with X who was exhibiting influenza symptoms. During the course of that visit, she raised concerns regarding abuse of X by the applicant;
·on 28 May, 2022 during a changeover the respondent raised an issue with the security guards of a shopping centre. When pressed during cross-examination, the respondent said she believed she had smelled alcohol on the applicant’s breath;
·on 31 May, 2022 the respondent attended upon Dr M and his notes refer to a belief by the respondent that the applicant is still “a perpetrator”. Again, the doctor confirmed that these notes reflected issues raised by the respondent; and
·also on 31 May, 2022 the respondent contacted the police while the applicant was spending time with X in a park. She thought that the applicant appeared drunk. The applicant’s unchallenged evidence is that the police approached him and breathalysed him on that occasion and there was no indication of intoxication.
The respondent’s claim that X had said that the applicant had punched her is particularly concerning. The respondent makes unparticularised claims about the applicant physically harming, or threatening to physically harm, the respondent. However, there is no evidence other than the respondent’s report of this claim by X of the applicant physically harming X. As I have recorded, the conversation with X is not the subject of sworn testimony from the respondent. The words used by X are not in evidence and so I cannot make an assessment as to whether the respondent’s interpretation of them is accurate. There is no context to the statements, temporal or otherwise.
This allegation is distinguishable from the concerns of sexual interference, initially raised by X’s doctor. Advice from an overzealous doctor does not explain this allegation. It is another type of harm altogether and it is made after the formal abandonment by the respondent of her risk allegations in April, 2022. The allegation speaks against the respondent truly adjusting her concerns about the applicant, suggesting she will interpret him as a danger to X with minimal evidence. Although the respondent disingenuously disavowed any suggestion that she was alleging that the applicant actually did this to X – rather she was simply reporting what X said – referring to the applicant as a “perpetrator” to her doctor (which I accept she did) tells against accepting her evidence. So too, her comments to the hospital I have referred to above.
The respondent’s two presentations to Dr N following the first trial date in April, 2022 are inconsistent with her resiling from a belief that the applicant posed an unacceptable risk of harm to X. There is nothing in Dr N’s advice to the respondent (as summarised in the letters he sent to Dr M) that supported her beliefs and yet she has persisted in repeating her allegations. Much of what she told Dr N concerning her observations of X’s behaviour was not sworn to by her in these proceedings.
During cross-examination, the respondent denied continuing to believe that the applicant poses a risk to X. She says that she is just a concerned mother reacting to what doctors and other persons in authority have told her. I accept that, to a point. However, she maintained her belief in the face of the paediatrician’s opinion, the New South Wales and Queensland child protection bodies considering her concerns were unfounded and the absence of any further evidence. More than that, she swore an affidavit in which she listed a series of “concerning behaviours/symptoms” that she says X “has been displaying for some time now”. Paragraph 6 of her most recent affidavit contains a series of fresh allegations about X’s behaviour all couched in language which suggests that they have been occurring for some time. Three examples will suffice.
First, she says that X complains about pain in her ears and whispering in her ears and said that she does not like it when her father whispers in her ears. That allegation appears nowhere else. There is no complaint of that nature (pain in her ears) in any of the medical material in evidence. One might have expected that it would be raised with a doctor if it were truly the case.
Second, she says that X complains about headaches regularly and most recently pain in her hip, where she refuses to jump because she says it hurts. Again, there is no medical evidence that would support these claims. One might have expected that complaints of regular headaches or hip pain would be the foundation of some medical assessment or investigation.
Third, the respondent says that X “still complains about having a sore vaginal area and still has visible signs of the infection from time to time”. There is no medical evidence that X has ever complained about having a sore vaginal area or that the skin condition (if that is what is meant by “the infection”) has returned from time to time, or at all.
I do not accept the respondent’s evidence about X’s behaviour changes and challenges unless it is otherwise corroborated by independent evidence. I do not consider that there is any corroboration for her claims in this regard.
I found the respondent to be a particularly difficult witness – even accounting for her language difficulties and the occasional use of an interpreter. She was evasive, aggressive and more inclined to pontificate than to answer questions forthrightly and clearly. My impression is that she clearly understood she was unlikely to prove her allegations and so a retreat from her position might salvage a palatable outcome for her. I am satisfied that she was anxious to say anything to demonstrate that she believed the applicant posed no risk to X.
I do not accept that the respondent has abandoned her belief that X is at an unacceptable risk of sexual abuse from the respondent. I find that she still believes that he continues to present that risk to her. Moreover, I find that the respondent continues to believe that X is a risk of physical harm in the applicant’s care by reason of physical violence from him. She has purported to give evidence, in a generalised way, that X’s behaviour has changed following her exposure to the applicant and in particular, X spending unsupervised time with him. Her statements in cross-examination that she does not attribute these observed changes in X’s behaviour to her contact with the applicant cannot be accepted. I am satisfied that she indeed draws a causal connection between the two without the slightest evidence it is so.
Exposure to the respondent’s beliefs about these matters will not benefit X. In her report, the family report writer said as follows:
142. If [X] remains living with her mother, and [the applicant] is thought to not to have sexually abused her, [X] is likely to grow up believing her father poses a risk to her, that he has sexually abused her. It would be hard not to given how ardent [the respondent] is in maintaining her beliefs about [the applicant], which will inform her behaviour towards [X]. This will distort how [X] conceptualises herself as she matures, how she views the world, and how she will relate to her father.
143.[X] will grow up believing she is a victim of abuse from a trusted person. She will thus likely internalise that there is something wrong with her. She will carry with her a mistrust of others, which might impair her capacity to form healthy and functional relationships in the future. She might never feel safe. She will likely view her father as unsafe, and this will shape her interactions with him, and might eventually cost her their relationship with one another. She might reject her father, and why would she not if she is constantly receiving a message, directly or indirectly, from her mother that he is dangerous and has harmed her.
144.In this scenario, the Court could consider a change of residency to [the applicant]. It might be the only way [X] will have a relationship with both parents. I suspect that if [X] remains living with her mother, her relationship with [the applicant] will constantly be disrupted. Any complaint [X] makes about her father will be viewed by [the respondent] through her lens of [the applicant] being an abusive parent, and she will very probably suspend time. Any time [X] experiences an ailment or behaves in a way that [the respondent] does not think is typical of children; it will be viewed by [the respondent] as evidence of ongoing abuse, and she will very likely suspend time. History is a good indicator of future patterns of behaviour.
I accept this evidence from the family consultant. It was not seriously challenged. I find that a change of residence for X to live predominantly with the applicant is more probably than not the only way X will have a relationship with both of her parents. I am satisfied that if X remains living with the respondent, her relationship with the applicant will be regularly and frequently disrupted.
I accept the family consultant’s assessment that:
(a)any complaint, or indeed in my view, any statement capable of misconstruction, that X makes about the applicant will be assessed by the respondent through her belief that he is an abusive parent;
(b)any time X experiences an ailment or behaves in a way that the respondent does not think is typical of children, it will be viewed by the respondent as evidence of ongoing abuse; and
(c)she will very probably suspend time between X and the applicant.
X’s constant exposure to a mother who believes her father has harmed her is likely to harm X’s relationship with her father and her sense of self. The family report writer was clear that X’s exposure to these beliefs need not be explicit, saying during cross-examination:
Children become very attuned to their parents’ physical presentation. […] So children can often pick up on the way a parent physically presents, raising of an eyebrow, a smile, a smirk, the enthusiasm in a parent’s behaviour. And also then obviously the tone of voice in which a parent might convey views and feelings and attitudes about the other parent.
The risk posed in this matter is that X will suffer psychological or emotional harm in the respondent’s care because the respondent’s conduct will deprive her of a meaningful relationship with her father, or otherwise harm her understanding of him in a way that will harm her. I have outlined above how the family report writer conceptualises the risk. The report writer’s definitive vocabulary suggests that if X lives primarily with a mother who believes her father has harmed X and will harm her again, the question is not if this will affect X’s relationship with him, but when. In my view, the harm is significant and the likelihood of X incurring it if she remains living primarily with the respondent is high.
This is not a no-time case – no one suggests the appropriate protection for X is that she spend no time with the respondent. However, X living primarily with the applicant would reduce her exposure to any negative view of him perpetuated by the respondent. She would have her own view of him, which I anticipate would be contrary to the respondent’s view. The opportunity will still exist for the respondent to misinterpret X’s words and actions and that will cause instability, but X will have the opportunity to test the respondent’s messages to her against her own experience of the applicant.
I have considered whether an equal time arrangement would suit X but, even though there would be a balancing of time between the two households, I consider that such an arrangement presents too great an opportunity for the respondent to impose upon X’s relationship with the applicant. There would be too great an opportunity for the respondent to expose X to her corrosive views of the applicant.
It should be apparent from the foregoing discussion that I consider that the respondent has an impaired capacity to meet X’s emotional needs and in particular her need for a proper and unhindered relationship with the applicant.
The applicant also suggests that the respondent’s capacity to meet X’s physical needs is also impaired. Specifically, he discusses dental cavities X recently needed filled. Apparently, X’s dentist told the applicant they were likely due to poor nutrition or hygiene, and the applicant suggests they are caused by the diet X is fed with the respondent or the respondent not caring for X’s teeth.
I accept that X needed dental work done recently. I accept that one explanation is that the respondent either feeds X a poor diet or does not care for X’s teeth. However, there are plainly other explanations and the applicant’s evidence is scant. I do not accept that the evidence permits me to say it is more likely than not that X’s dental difficulties result from neglect by the respondent. In my view, I would require expert evidence in order to determine this issue. I consider that the respondent is more than capable of meeting X’s physical and intellectual needs.
The applicant’s capacity to be X’s primary caregiver and facilitate a relationship between X and the respondent is currently untested. However, I am satisfied that the applicant has the willingness and the capacity to foster and facilitate X’s relationship with her mother, Because of her beliefs that I have found she holds above, I am satisfied that the respondent is not able and willing to foster and facilitate X’s relationship with her father as it needs to be.
X has lived primarily with the respondent all of her life. The respondent is her main conduit to her Country J heritage, something the applicant is poorly placed to facilitate her exploring, understanding and enjoying. I take that matter into account.
It will be an upheaval for X to change her primary residence. I have no doubt it will cause upset, disruption and distress to her in the short-term. Nonetheless, when this was put to the family report writer her evidence was that a change of residence was likely to be successful, given the relationship between X and her father. I accept that evidence.
An arrangement whereby X lives predominantly with the applicant will deliver her more benefits than a proposal where she remains primarily in the respondent’s care. For the reasons I have discussed above, although there are some disadvantages to X residing with her father in the short term, I consider that in the longer term her interests will be better served. I am satisfied that it is more likely that she will have relationships with both of her parents that are more stable and less disrupted than if she remained living with the respondent.
Conclusion and orders
Despite the submissions for the applicant and the independent children’s lawyer, in my view it will be in X’s best interests for her parents to have equal shared parental responsibility for decisions concerning the major-long-term issues for her. To deprive her of the opportunity to have input from both of her parents into decision making for her is a significant step. Although the co-parenting relationship is fractious and difficult, the applicant’s evidence is that the parties have been able to make some decisions for X jointly, such as the day-care or kindy she would attend. I am satisfied that it is in X’s best interests for her parents to have equal shared parental responsibility for her. I will make that order.
Having regard to the reasons I have set out above, I do not consider that it would be in X’s best interests for there to be an order that she live equally between her parents’ households. To permit that would be to broaden the opportunity for X to be visited with the detriments I have identified above from living primarily with the respondent.
The independent children’s lawyer’s proposal is very similar to that of the applicant. The independent children’s lawyer proposes more time between X, the respondent, and a faster progression of time. The independent children’s lawyer does not seek to restrain X from travelling with the respondent, nor any orders about X’s passports. The applicant seeks orders on those issues.
Both proposals specify a particular general practitioner and medical centre to which X will be taken. The applicant seeks to restrain the respondent from taking X anywhere else except in case of emergency, where the independent children’s lawyer seeks to restrain both parties, except in the case of emergency or referral from X’s general practitioner, from taking her to a different medical centre. Given the evidence of Dr M and his apparent presumption (my words not his) that the applicant was a perpetrator of sexual abuse upon X, it is not appropriate that he continue to treat her. The applicant’s orders about that matter are the most appropriate.
Both the independent children’s lawyer and the applicant seek for the applicant to have some access to understand if the respondent is continuing to engage with her mental health support. The independent children’s lawyer limits the scope of that access further than the applicant does. I prefer the orders proposed by the independent children’s lawyer because they are less intrusive.
The independent children’s lawyers’ proposed restraints on the consumption of alcohol and other substances is focussed on the respondent’s medicinal cannabis. The applicant’s proposal is broader. I do not intend to make either form of order. The restraints are not necessary because they are in terms simply requiring the parties to comply with the law – something I assume they will do. As to the respondent’s use of cannabis, if she has a prescription for its use from a medical practitioner, it is not the place of the court to gainsay that prescription.
The applicant seeks that the respondent pay $13,650 towards the cost of supervised time between himself and X, which he has incurred to date and the preparation of a single expert report. The independent children’s lawyer is silent on that issue. The applicant’s evidence on these costs is that he has paid $13,140.00 towards supervision costs and a further $14,000.00 towards the preparation of the expert report. The applicant provides no documentation supporting these figures but I do not doubt them.
On 1 July, 2021 a senior registrar of the Family Court, as this court was then known, made this order:
That for the purposes of [the orders for supervision] the Applicant Father shall pay the full cost of supervision fees for [the contact centre’s] services in the first instance and the Respondent Mother shall reimburse the Applicant Father by agreement or by order of the Court once the Respondent Mother is engaged in paid employment.
It does not appear to be in dispute that the respondent is presently in paid employment.
Rule 7.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) states:
(1)Unless the parties agree otherwise or the court otherwise orders, the parties (but not an independent children’s lawyer) are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.
I see no reason, therefore, why the respondent should not share in these costs.
To return to the question of X’s time with the respondent, I consider that the evidence suggest some need for caution in establishing time between X and the respondent after she transitions into the applicant’s care. There will be a need to ensure that X is not exposed to a risk of harm from her interacting with the respondent who may not have come to grips with the orders of the court. However, I do not consider the evidence supports X’s time with the respondent increasing at the pace the applicant proposes. On this point, Ms L gave the following evidence:
[…] I understand why there might be a need for supervision, but I don’t know why, after that, it then needs to be what I would qualify as kind of piecemeal time. Because she’s familiar with her mother. So it’s not like she then needs to be gradually introduced to them and build up and then get used to that regime of time and then move to the next phase and get used to that time, because she has always
Living primarily with the applicant, in my view, presents X’s best opportunity at a meaningful relationship with both parents. However, there is plainly a detriment to her in every barrier between her and significant and substantial time with her mother. I struggle to identify any benefit to X from her time with the respondent progressing at the rate proposed by the applicant as opposed to the rate proposed by the independent children’s lawyer. I also do not understand there to be any benefit to X for the time between herself and the respondent to be limited to what the applicant proposes as opposed to the independent children’s lawyer.
The respondent seeks orders that would permit her to travel at least to Country J with X. The applicant opposes such travel on the basis that there is a real risk the respondent would not return with X. Whilst I accept that Country J is a Hague Convention signatory and that offers some comfort, I have no evidence by which I could assess the ability to extract X from Country J if she were retained there. I accept that the respondent’s life is primarily in Australia. She has lived here since 2014 and not returned to Country J since 2018. Her employment is here and she can reside here because of the partner visa the parties sought together. I accept that her connection to Australia ameliorates somewhat the risk she will not return with X if she was to travel to Country J.
Nonetheless, given X’s young age and her inability to make even rudimentary communication with the applicant or relevant authorities if she was retained in Country J (or anywhere else for that matter), I do not consider that it is in her best interests to make an order permitting overseas travel at this stage. Of course, the applicant and the respondent may agree to X travelling overseas with the respondent and in the absence of agreement and if a firm proposal is put, it may be the subject of a separate application for overseas travel in due course.
Generally speaking, I will make orders in terms of the independent children’s lawyer’s proposal. There will be three further orders:
(a)the injunction on X being subjected to psychological treatment I foreshadowed during submissions;
(b)the orders regarding X’s passports and travel as sought by the applicant; and
(c)the orders that the respondent pay half the cost of the contact centre and half the cost of the single expert report, as sought by the applicant.
Finally, at the conclusion of the trial I sought written submissions as to whether I should refer the parties in these proceedings to the Department of Immigration. I harboured concerns about the process by which the respondent secured a partner visa. Those concerns remain, however, having regard to the parties written submissions on the matter, I have decided to make no orders or directions in that regard.
For these reasons, I make the orders at the beginning of this judgment.
116 I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.
Associate:
Dated: 9 December, 2022
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