Marvin and Whitney

[2010] FamCA 887

FAMILY COURT OF AUSTRALIA

MARVIN & WHITNEY [2010] FamCA 887

FAMILY LAW – CHILDREN – Father’s application for sole parental responsibility – Expert evidence alleviated the Court’s concerns that the mother lacked capacity to care for the child as the mother did not demonstrate a psychiatric illness other than her “unshakeable” belief that the parties young child was abused by the father – Court of the opinion that the father should have sole parental responsibility for the child provided that such order be stayed until 1 March 2011 or the further order of the Court

B v B (1988) 82 ALR 584
M v M (1988) 166 CLR 69
U v U (2002) 211 CLR 238

Family Law Act 1975 (Cth)

APPLICANT: Mr Marvin

RESPONDENT: Mw Whitney

INDEPENDENT CHILDREN’S LAWYER: Ms Hafey

FILE NUMBER: PAC 4558 of 2008

DATE DELIVERED: 30 July 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATES: 28 & 29 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Friedlander

SOLICITOR FOR THE APPLICANT:

Mr Cunningham

Cunninghams the Law Practice

COUNSEL FOR THE RESPONDENT: self represented

SOLICITOR FOR THE RESPONDENT: self represented

COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER

Ms Hafey

Legal Aid NSW

Orders

1. That all previous orders with respect to the children T and L Whitney and W Marvin be discharged.

2. That Mr Marvin (the father) have sole parental responsibility for the child W Marvin born … January 2007 provided that such order be stayed until 1 March 2011 or the further order of the Court.

3. That until 1 March 2011 or the further order of the Court Ms Whitney (the mother) have sole parental responsibility for the said child.

4. That the said child spend unsupervised time with the father during such periods          as the mother has sole parental responsibility for her:

   (a)        Until the said child commences school, on one day during each week, which shall in the absence of agreement between the parents be each     Wednesday from 10am to 4pm, and

   (b)       on one day each weekend, which shall in the absence of agreement       between the parents be each Saturday from 10am to 4pm

   (c)       as and from 1 November 2010, in lieu of paragraph b hereof, each        alternate weekend from 10am Saturday to 4pm Sunday

   (d)       as and from 1 December 2010, for one week of each school holiday     period, which shall in the absence of agreement between the parents be for the period of seven days commencing with the first Monday of each      mid year holiday period at 10am and concluding on the Sunday following at 4pm and be for the seven days commencing at 10am on 26          December and concluding at 4pm on the seventh day following.

5. That, in the absence of agreement between the parents, time spent by the child            W with the father pursuant to these orders be commenced by the father      collecting W from the mother at McDonald’s, B, and be concluded by the mother collecting the child from the father at McDonald’s, E.

6. That, subject to any contrary order of the court, as and from 1 March 2011, the          mother spend the time with the child W which the father is to spend with her pursuant to these orders, on the basis provided by these orders.

7. That either party have liberty to apply to the Court after 1 January 2011.

IT IS NOTED that publication of this judgment under the pseudonym Marvin & Whitney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:  PAC 4558 of 2008

MR MARVIN

Applicant

And

MS WHITNEY

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court relate to a child of the parties, W Marvin, who was born in January 2007.  The parties are the natural parents of the child, W.  Each party seeks that W primarily reside with him or her, and in the case of the father, that W spend supervised time with the mother on a detailed and graduated basis.

2. The mother’s position is that if the Court makes certain findings with respect to her allegations of abuse of the child, herself, and two other children of the mother who are not the biological children of the father, the father should spend no time with W. If the Court does not make such findings of abuse with respect to some or all of the children and the mother, the mother seeks that the father, nevertheless, have supervised time with the child W.

3. Sensibly, neither party seeks that the presumption of equal shared parental responsibility provided for by the Act be preserved.  Each party seeks an order for sole parental responsibility for W. Even if that had not been the common position, that would inevitably have been the outcome of the proceedings, given that the parties would not be able to render such a regime workable or conducive to W’s best interests. 

4. As will hopefully be realised, the proceedings have occurred with some unfortunate limitations, or on the basis of some unfortunate constraints.  What is about to be said is not said critically of anyone.  Hindsight is a wonderful thing. 

5. The mother has been self-represented.  That necessarily created difficulties for her. Those difficulties have been exacerbated by what might neutrally be described as her psychiatric issues.  Indeed, at some point during the course of the mother’s presentation, the Court wondered about her capacity.  Ultimately, and in reliance upon the expert medical opinion evidence of Dr R, a legally qualified medical practitioner with specialist qualifications in psychiatry, the Court’s concerns about the mother’s capacity were sufficiently allayed to obviate pursuing any question of appointing a guardian for the mother.  Dr R’s opinion was that the mother did not demonstrate the signs of a psychotic illness, except for her beliefs.  Those beliefs will necessarily be referred to in a number of ways in the course of these reasons.

6. Again, it is not said critically, but on the one hand, the mother, with psychiatric issues, has been unrepresented, whilst on the other, the father has had the benefit of competent legal representation by an attorney and counsel.

7. The ICL, through her counsel, at some point during the trial formed the view that the weight of the ICL’s support should be brought to bear rather more in favour of the father’s position than that of the mother.  Again, this is not said critically, but the Court perceives that the record would reveal that whilst many issues were actively agitated with the mother, and that such issues were clearly pivotal to the outcome of the proceedings, the father’s proposals may not have been forensically scrutinised to quite the same extent.  Again, that is not said critically, but simply to explain the dynamics of the dispute.

8. Again, it is not a criticism of anyone, but the expert opinion evidence from which the Court benefitted comprises, for good reason, a psychiatric report, the primary focus of which, sensibly, was the mother.  As Dr R, a dispassionate, highly qualified, and very experienced medical practitioner readily mentioned during the course of her oral evidence yesterday, the extent of Dr R’s involvement was limited.  The Court does not have the kind of report which is often available in proceedings of this kind.  The Court has not had a family report which traverses the relevant provisions of section 60CC of the Act. That section deals with how a Court determines what is in a child’s best interests. 

9. Again, that is not said critically, but it does alert the Court to the need to avoid allowing the proceedings to spiral down, as it were, into a single-issue case.  It is, as the High Court has made clear on a number of occasions, ultimately the welfare of the child which is the paramount consideration, and it is the provisions of the statute which identify the criteria by which that is determined to which regard must be had. As the High Court has said, the determination of a particular issue may assume determinative significance, but it remains the law that such issues are to be considered under the umbrella, as Kirby J was fond of saying, of the paramountcy principle. 

10. Against that background, the Court comes to its difficult task.  That task is made more difficult because, albeit in quite different ways, regrettably this is not a case in which there is currently available a proposal which can be regarded as entirely satisfactory.  It is, through no fault of the parties, a case of determining which of two less than ideal proposals for the care of W is to be preferred.

11. The father’s proposal is that W would reside with him in accommodation which he occupies in E.  E is, depending upon one’s personal point of view, either the best or perhaps the second best town in the central west of New South Wales.  There is no evidence before the Court that the father lacks the capacity to adequately provide for W were she to reside with him.  The father has the time, and the Court accepts, the commitment to look after W on a full-time basis and to do so with dedication and, subject to what follows from the evidence, some skill.

12. As is not in doubt, there are difficulties with the father’s proposal. The first and most obvious is, as the father himself conceded, that since separation of the parties in April 2008, all such time as he has spent with the child has been supervised. There is, necessarily, a degree of unreality about such an arrangement.  It could be said, and the Court accepts, particularly having regard to the findings of fact which the Court will make in these proceedings, that the father being restricted to supervised contact can, with hindsight, be seen as having been somewhat unfair to him and to W and, again, with the benefit of hindsight, to have been unnecessary.

13. The fact remains, however, that from the time the parties separated, that being a time when W was aged approximately 15 months, all such time as the father has had with her has been supervised.  Prior to that time, the father’s evidence is that on something like six to eight occasions, he looked after the child in the absence of the mother for periods of five to six hours.  Accepting the father’s evidence about that, as the Court does, his experience can only be regarded as limited. 

14. The father does not have an existing support network as, in fairness to him, he readily conceded in his evidence yesterday.  He expresses the intention of establishing support networks, and the Court accepts that he is genuine in that regard.  It might be noted in that context that whilst it could be said, “Well, he would say that, wouldn’t he,” the father has, albeit perhaps somewhat belatedly, undergone an anger management course and completed it.  He has and is doing literacy and related TAFE courses, and has generally, the Court accepts, endeavoured to take to heart those messages which Dr R directed to him in her report of April last year. 

15. Dr R, in evidence yesterday, suggested some of the measures which the father needed to implement in order to be able to effectively parent W were she to primarily reside with him.  Those initiatives were not inconsiderable and were reflected in the minutes of order which counsel for the ICL submitted at the conclusion of the trial.  Those weaknesses must be weighed up against the strengths of the father’s proposal. 

16. There are other aspects of his proposal, and indeed of the mother’s, which are, perhaps, better considered within the context of section 60CC rather than in this overview of the competing proposals.  The mother’s proposal is that she would continue to reside in B, a very appropriate central west town. The mother proposes that she would continue to be W’s full-time carer, and that W, and two older children, T, who is aged 16 years, and L, who is aged 11 years, would remain in the household with the mother and W.

17. Reference was made earlier to the risk in determining these proceedings with attention being unduly focused upon a number of discrete issues rather than by reference to the totality of the evidence.  his is particularly true of the mother’s case.  The mother was unable to articulate her case in any effective way.  There are, however, a number of aspects of her case which can be regarded as strengths.  There are also, as will be seen, some very significant weaknesses. 

18. It is appropriate to refer briefly to the strengths of the mother’s case. The unchallenged expert medical opinion evidence of Dr R is that, not surprisingly, the mother is W’s primary attachment figure.  The expert opinion evidence of Dr R is that W is developing satisfactorily, or, as Dr R expressed it, presented as a developmentally appropriate two year old, except for her minimal use of language.  No evidence before this Court establishes that the minimal use of language is referrable to or reflects adversely upon the mother’s parenting of the child.

19. As noted earlier, Dr R recorded that W’s primary attachment was to her mother, who has been her primary caregiver.  She also recorded, uncontroversially for present purposes, that W’s older sisters would also be significant people to her.  There is no suggestion that the mother’s physical care of the child has been derelict in any relevant sense, particularly in the period since the parties separated. That is a period of about two years and three months now. There is no evidence that, whatever the mother’s level of substance dependence might be has adversely impacted upon the child’s parenting.

20. In her report, Dr R referred to a number of matters which were asserted to have been complained of by the father during the course of interviews.  Whether or not the father did so complain is unclear.  What is clear, however, is that none of the matters recorded in that regard with respect to dereliction of duty in terms of schooling, school attendances, dental hygiene, or matters of that kind emerged in evidence at trial.  That is to say there is no evidence before this Court that save in one vitally important respect that, the mother is other than, as she claims, a good mother.  Were W to continue to reside with her mother, there is no rational basis for concluding that the child’s material needs would not be adequately attended to, as they have been since the parties separated.

21. The obvious weakness in the mother’s proposal is, as Dr R identified, in April of last year, that the mother has an unshakeable belief that she and all her three daughters have been drugged and sexually abused by the father and/or other persons.  This is alleged to have occurred prior to the separation of the parties in dramatic circumstances on 29 April 2008.  There is no suggestion that anything of the kind alleged by the mother has occurred since that time, and the great weakness in the mother’s case is that, to use the colloquial, she simply will not let go her belief that the allegations she make have substance and, indeed, will not until she is proved wrong.

22. Against the background of this overview of the proceedings, it is perhaps appropriate to refer immediately to what can be referred to as the abuse allegations.  The Court has identified what the allegations are.  In reality, the allegations cannot really be further defined or identified, either in terms of time or frequency of occurrence or otherwise.  Part of the difficulty which has confronted the various people who have been required to investigate the allegations is that very lack of specificity. 

23. Indeed, and the mother does not suggest otherwise, there is no evidence that the children have ever actually disclosed any abuse.  That is, perhaps, unsurprising if, as the mother alleges, the children were drugged at the time of such abuse.  The difficulty also implicit in the mother’s assertion that these events, having occurred at a time when she and the children were drugged that, she is unable to particularise them in any meaningful way, overlooks the reality that if drugged to the extent the mother appears to assert, it is difficult to see how one could remember the reality of abuse.

24. The Court does not need to speculate about any of these matters.  The authorities make clear, and the statute reinforces, that the Court must carefully consider allegations of physical or sexual abuse.  The difficulty in this case is that such consideration must be informed by the evidence before the Court.  The mother recognised and confirmed in her evidence that she had no proof, no evidence of her allegations.  There is no evidence of complaint by any of the children. There is no circumstantial evidence which could advance the allegations. 

25. Not surprisingly, there are no admissions by the father of any impropriety.  Also not surprising, given the vagueness of the allegations, forensic agitation of them with the father provides no rational basis for rejecting his protestations of innocence.  Indeed, the mother’s own evidence as to the father’s statements to her with respect to substances on the face of one of the children and bedding are rather more consistent with his innocence than with his guilt. 

26. Not surprisingly, police, DOCS, medical practitioners who have been charged with examining the mother’s allegations have not been able to either identify a perpetrator or take steps to either protect the children or prosecute a perpetrator.  There is circumstantial evidence which enables the Court to be more comfortable in finding, as it does, that the mother’s allegations of abuse are not made out according to the civil standard of proof. 

27. It is improbable, particularly given the age of the mother’s two older daughters and their apparent lack of fondness for the father, that neither of them has ever made a disclosure.  There is no evidence before the Court that the behaviour of the two older children, who are well and truly of school age, has come to the notice of their schools or otherwise resulted in disclosures to school counsellors or teachers, or any conduct which has given rise to a concern by those educational professionals that something might, to use the colloquial, be amiss at home with either of the girls.

28. There is, with respect to the mother, simply no rational basis upon which a Court purporting to apply the law could find either that her allegations of abuse have been established, or that anything emerging from those allegations could give rise to a reasonable apprehension that W being in the unsupervised presence of her father would constitute an unacceptable risk of abuse to her.

29. The mother, undoubtedly, has a genuine and abiding belief that such is the case, and it is that genuine and abiding belief which gives rise to the difficulty which is central to this case.  Objectively, but for that abiding and “unshakable belief”, as Dr R has referred to it, it is difficult to imagine this case having any outcome other than W continuing to reside with her mother, and spending substantial and significant time with her father.

30. There is medical evidence before the Court which is ultimately largely overtaken by Dr R’s evidence and the facts emerging from the evidence of the parties and from the mother particularly.  Indeed, the case against the mother is at its strongest in reliance upon the mother’s own statements. 

31. For the record, the Court is aware of the subpoenaed material from the D Hospital which relates to the mother’s admission to that psychiatric facility on or about 29 April 2008, the day the parties separated. The mother had first been taken to B Hospital. There, in effect, she was given the option of admitting herself voluntarily to D Hospital or being scheduled under the mental health legislation, with that consequence.

32. The DOCS files which relate to September/October 2008 reinforce the impression that the mother was, at that time, reiterating the complaints which she has consistently and consistently vaguely, reiterated from time to time until as recently as 20 July of this year.

1. The Interrelate documents are relevant in two ways.  The first is in that they provide support for what is ultimately not really controversial, namely that the father has a good relationship with W, as Dr R observed and reported. Secondly, they are relevant to the mother’s complaint that prior to time spent being supervised by Interrelate, she believed that the father may have interfered with W during a supervised contact period. 

2. The mother’s evidence, as noted earlier, gives rise to real concerns as to W’s best interests being served by remaining in her care.  During the course of the mother’s evidence, two broad themes emerged.  The first was that the mother has in her quest for what she sees as the truth, whatever that may be, inappropriately exposed the children to the risk of being abused by the pursuit of that truth. 

3. The second theme which is perhaps as concerning is, the mother’s lack of insight into the inappropriateness of her own behaviour.  This is probably no better demonstrated than by reference to the mother’s evidence that she had sought to have quite invasive medical examinations of the children conducted, notwithstanding that there had never been a disclosure by any of them of abuse by anyone and her becoming angry, as she readily conceded that she had, when a doctor quite properly declined to conduct such examination. 

4. The mother’s evidence revealed not only a willingness to act inappropriately but a complete inability to understand how inappropriate that behaviour was.  There are other examples to which reference could be made, and the record would reveal them, but that is probably the clearest and most extreme example of the mother’s lack of insight. 

5. The mother gave evidence in relation to the occasions when she believed that semen had been on one of the children or on bedding.  Without referring to it in detail, that evidence did not implicate the father. More significantly, perhaps, the mother’s own version of those events made clear that at least on some of those occasions, she became aware of the substance, whatever it was, because the father drew it to her attention.  He made what, with hindsight, was probably one of the most ill-advised statements of his life when the father said to the mother on one occasion, “It looks like semen,” or “It looks like sperm,” or words to that effect.

6. There were a number of innocent explanations in relation to the substance which has never been established to be semen, none of which the mother is able to accept.  On balance, in the circumstances of this case, the improbability of the father, if he had been the perpetrator, leading the mother to the evidence of his crime would be apparent to all but the mother.

7. The mother, at one point in her evidence, said that the father’s role in W’s life should be to “play the part of the father, if that is what he is.”  It emerged that the mother has doubts as to whether the father is, in fact, W’s father.  It was pointed out to the Court by counsel for the ICL, quite correctly, that in her initial pleading in the Local Court, the mother had sought paternity testing of the child.  What became of that application is not clear.  What is clear is that the mother did not persist with that application.  What the Court should infer from that is difficult to know, because the mother’s own primary application then and now is that, subject to the Court’s findings with respect to abuse, the father should spend time with W. 

8. The mother’s own evidence in relation to W’s conception, in conjunction with the Court’s inability to find that the allegations that she was drugged and, by necessary implication, had sexual intercourse with someone other than the father, leaves no scope for inferring, much less concluding, that the father is not the child’s biological father. 

9. As with many things however, the issue raises the inconsistency between what the mother says, and what she does or appears to do.  Notwithstanding that curious evidence, no one suggests that W has other than a good relationship with her father.  Whatever the mother’s thoughts and feelings about possible abuse of the child, they have not yet resulted in her poisoning W’s relationship with her father. 

10. The mother was criticised, with some justification, for her lack of commitment to the orders for time to be spent by W with the father.  There is an objective measure of accuracy in those complaints. On the other hand, it must be remembered that these parties have very modest financial circumstances. People on welfare with often, as the evidence implied here, old and sometimes unreliable motor vehicles may well have difficulty completing what may seem the very simple task of travelling between B and E, E and B.

11. The mother has, however, substantially complied with the orders for supervised contact.  Her track record is less than perfect, but it is vastly better than those of many litigants who appear before this Court and certainly pales into insignificance with the track records of parents alleging abuse, and the excuses they come up with for ensuring that time periods do not occur.

12. The mother’s medical condition was, quite properly, subjected to scrutiny.  The mother took herself off the medication which was prescribed by F Hospital and subsequently varied by her general practitioner.  The evidence is unclear about the circumstances in which that occurred.  What is clear is that there is no evidence that the mother has had a subsequent psychiatric admission or has “decomposed”, to use the term Dr R used in her evidence.

13. The mother leaves no room for doubt that if he is the father, the father is a bad man.  She does not seek to present any different view in that regard, but, as noted a few moments ago, she still has substantially complied with the previous orders of the Court and has not yet poisoned the relationship between W and her father.  The mother concedes that she has no proof, no evidence, that her allegations are not correct or are not true. Several times the mother reiterated in the course of evidence and submissions that, “Everything I see tells me that I am right.”  At other times the mother said in the course of evidence and submissions, “I need to be proved wrong,” or words to that effect.

14. The difficulty the mother’s evidence presents in relation to alleged abuse is that, objectively, absent successful psychiatric intervention, about which more will shortly be said, the mother will not abandon her “unshakable belief” that the father has abused W, and may do so in the future.  The difficulty is that absent, in what way the Court cannot possibly imagine, the father proving his innocence, as she said, the mother will continue to “be on edge the whole time [W] is with her father” if she is with him in an unsupervised capacity.

15. It is obvious that whilst proving that something did happen may often be difficult, proving that something never happened or never could have happened becomes impossible where, as here, parties occupy a home together, in the absence of 24-hour, seven day a week independent surveillance, whether that be by other independent people, closed circuit television, or some other means.  It is fanciful to imagine that the father could ever establish his innocence to the mother’s satisfaction. 

16. The mother’s evidence in relation to the state of her beliefs renders it impossible to accept her assertion that she is “already moving on.” With respect to the mother, the evidence suggests that she unshakably believes the allegations of abuse have substance now, as she did when she first made them.  The mother asserted early in the course of her evidence, that if the referee’s decision - the judgment of the Court - was that her allegations were not established, she would move on from them.  Subsequent statements by her leave no scope for doubting that whatever her intention, the mother would not be able to do that. 

17. Dr R saw the parties once - which is not to imply that Dr R needed to see them more than once - in April 2009.  The mother’s presentation then was consistent with her presentation before the Court 15 months later during the trial of these proceedings. 

18. The father’s presentation was significantly different.  To his credit, the father readily conceded he presented as an angry man, before Dr R.  Even accepting that the father was not tested and probably could not have been tested by cross-examination, which would have been likely to have revealed the measure of any anger which he continues to manifest, the father presented in the witness box as measured and calm.  He made a number of statements which reflect well upon him in terms of his insights both with respect to W and, perhaps more significantly, with respect to the mother.

19. It could again be said, “Well, he would say that, wouldn’t he?”  The Court is not persuaded that the father said what he did out of convenience.  He has, to his credit, undergone anger management training or a course in anger management.  He explained, credibly, why he had not undergone that sooner than he did, but he has done it.  He has completed it, and the evidence before this Court suggests that the course did him considerable good.  The father has done other courses, and he is doing further courses.  His presentation was, accordingly, more positive before this Court than it was before Dr R. 

20. As noted earlier, if the father made the complaints he did about the mother’s parenting, save with respect to her beliefs, the evidence before this Court does not provide a rational basis for making the findings he seeks. At the risk of oversimplification, but for the mother’s beliefs, highly significant though they are, this Court would have little difficulty in determining that the best interests of W’s welfare would be served by her continuing to reside with her mother and spending substantial and significant time with her father.

21. As noted earlier, observations of W with each of her parents by Dr R revealed nothing untoward in terms of their parenting skills.  Dr R referred, under the heading Summary and Discussion of her report, to a number of important matters for the purpose of section 60CC.  Some have been referred to. Under the mother’s care, W has developed appropriately except for the one matter, which the evidence does not enable the Court to infer reflects adversely on the mother. The child seemed comfortable with both parents, showed no separation anxiety with either of them.  Her primary attachment was to her mother, who has been her primary caregiver.  Older sisters also significant people to her.

22. It is not in doubt that if W were to primarily reside with her father, such contact as she had with T and L would occur, in all probability, only through contact with her mother.  For whatever reasons, and they do not reflect adversely upon the father, T and L do not have any meaningful relationship with him and appear unlikely to have a relationship of any significance in the future.

23. Dr R recorded accurately, that W, importantly for present purposes, was in a compromised position in having a mother who believes that she had been sexually abused and who acts on those beliefs to involve the children.  The evidence leaves no doubt that the mother has canvassed T and L in various ways, which are unfortunate, to reveal what, to date, notwithstanding an abundance of opportunity to do so, T and L have not revealed.  Their failure to reveal is all the more significant given that they have apparently undergone courses in relation to these matters, courses which one would think would empower them to disclose if there was anything to disclose.

24. Perhaps it is only because W is too young to have been canvassed at this time, but there is evidence that, whilst the mother is hypervigilant after each contact period, W has not been subjected to the kind of lobbying which her elder siblings have.  Dr R expressed some opinions about the mother’s beliefs about sexual exploitation.  The Court does not need to speculate about any of those matters.  It is sufficient to find, as the Court has, that the allegations have not been established and that nothing arising from the evidence with respect to them gives rise to an unacceptable risk of abuse if W is in the unsupervised care of her father.

25. Dr R reported that the mother had not used illicit psychotropic substances to any degree for a significant period of time.  There is no evidence before this Court that the mother’s use of marijuana is other than as she described it.  The absence of urine screens or clear urinalysis results in the mother’s case does not or ought not, in the Court’s view, properly lead to any adverse inferences being drawn.  As the High Court made clear in Jones & Dunkel, the absence of such evidence simply means that it would not have assisted the case of the person who could have adduced that evidence.  It does not operate reflexively to constitute evidence in this case of substance abuse.  Importantly, in April 2009, except for her beliefs, the mother did not demonstrate the signs of a psychotic illness.

26. Dr R identified the matters which led her to her diagnosis of a delusion disorder and its origins.  Having regard to the forensic basis of that opinion, Dr R’s eminence as a psychiatrist, her experience, qualifications, and methodology entitle that diagnosis to be accepted.  As discussed briefly with Dr R during her evidence, the focus in this case is not so much on the precise identification of the mother’s psychiatric state, given that she has not been diagnosed as having a psychotic disorder, but rather on what is likely to happen in the future.

27. In summary, Dr R’s oral evidence was that a disorder of the kind she diagnosed, whether that diagnosis or a different diagnosis be applied, was somewhat resistant to medication, or was not a disorder readily settled by medication.  Having been informed of the history of the mother’s compliance with medication regimes in the past, Dr R was less than sanguine as to the likelihood of the mother adhering to a medication regime in future. The efficacy of any such regime was questionable in any event. 

28. Dr R was of the opinion that removing W from the mother’s primary care and placing her with the father could trigger depression and erratic behaviour in the mother.  Regrettable though it might be, the Court must place the welfare of W above such concerns or considerations.  In the course of her oral evidence, having been advised, accurately the Court is satisfied, by counsel for the ICL of the salient features of the evidence, primarily of the mother, which had emerged prior to Dr R’s evidence, Dr R modified the recommendation made by her in April 2009. Dr R had recommended that if the matters referred to under her series of recommendations did not ameliorate the mother’s attitudes and beliefs, consideration should be given to W living with her father. That changed to a positive recommendation that the child actually live with her father in the light of the evidence which the Court had heard.

29. Dr R, not surprisingly, did not express her ultimate recommendations in what could be described as black and white terms, but the Court understands her ultimate position to be that W’s best interests would be served by primarily living with her father.  It was suggested by the Court to Dr R that W’s primary attachment to her mother would be destroyed if she were to primarily reside with her father.  Dr R suggested that it would not necessarily be destroyed but rather that the primary attachment relationship would become “attenuated” in that circumstance. The child would experience “acute grief”, at least in the short term, the nature, extent and duration of which would be referrable to the extent to which the mother remained available for the child during that time.

30. A balanced reading of Dr R’s oral evidence would leave no room for doubt that in her expert opinion, whichever way the Court decides this case, there are many unknown factors. Only the fullness of time would reveal just how wise or otherwise any order the Court made would be.

31. Dr R spelled out in some detail the father’s needs if W were to primarily reside with him.  These included the need to be well supported in the community. Dr R suggested that a lot of such support would be required.  As noted earlier, the father has good intentions in that regard.  He cannot be criticised because he does not have these support networks in place at present.  It is a very difficult, if not impossible thing to have all these things in place for a child who may or may not come to live with you.  But with respect to him, and accepting that he was not tested in relation to this in a way that one might have hoped for, there is a vagueness about that.  The Court simply does not know beyond the father genuinely wishing to have that happen, how it would. The image the evidence leaves in the Court’s mind is of a little girl moving for the first time to live with her largely untried father in something of a vacuum, albeit a vacuum which he undoubtedly would use his best endeavours to fill. 

32. Dr R suggested that the father would also need assistance in the various ways she identified from an appropriate child-focused agency. DOCS was mentioned by Dr R.  Dr R identified courses which the father should do, including a Triple P parenting course.  She described the initiatives to socialise W who would, it must be remembered, become an only child, having all her life been one of three children in a family, in order to cope with the change in her primary living arrangements.  Dr R concluded her evidence in relation to this topic by saying that a variety of “practical and emotional supports” would be required for the child’s primary placement with her father to be successful. 

33. As noted earlier, the mother has not articulated her case well.  It is, however, the Court’s obligation to do what is in the best interests of a child.  As the record would reveal, the Court, at various times, sought to direct the mother to what the Court perceived to be relevant matters, in accordance with what the Court understood its obligations to her to be as an unrepresented litigant and, in the circumstances of this case, an unrepresented litigant with psychiatric issues. 

34. As this review of the evidence hopefully makes clear, viewed at one level, this might be thought to be in the nature of what is sometimes described as a single-issue case.  Such a view is simplistic and falls into the trap which the High Court identified, amongst other cases, in the 1988 decisions of B v B (1988) 82 ALR 584 and M v M (1988) 166 CLR 69. The issue remains the best interests of W as determined in accordance with the provisions of Part VII of the Act.

35. Turning to the statutory provisions which govern the determination of the case, section 60CA mandates that the bests interests of W are the paramount consideration.  As noted earlier, in this case none of the statutory presumptions arises, given that no one suggests that there be other than an order for sole parental responsibility.  As such, it is unnecessary to have regard to the provisions of section 65DAA of the Act.  That is to say the Court is not required to explore the practicability of equal shared time between households or substantial and significant time.  It comes back, as counsel submission clearly recognise, to what is in the child’s best interests.

36. That raises section 60CC of the Act.  Section 60CC(2) refers to the primary considerations. The first of those is the benefit to the child of having a meaningful relationship with both of the child’s parents.  Superficially, that factor favours the father.  On proper analysis, it continues to favour the father but not as overwhelmingly as might at first be thought.  To approach the topic from the reverse end, as it were, there is no rational basis for finding that the father would not preserve a meaningful relationship between W and her mother. 

37. Whilst there are rational grounds for being apprehensive that the mother would do the same in relation to W’s relationship with her father, she has, to date, despite her abiding belief as to the possible impact of so doing, and albeit within the context of supervision, substantially complied with orders for time spent between W and her father. The mother has not either poisoned the relationship or, the evidence reveals, yet done things which could have that effect.  She may have poisoned the relationship between the father and T and L, but the evidence does not go that far in relation to W.  However it is viewed, section 60CC(2)(a) favours the father, not overwhelmingly, but to some extent. 

1. Section 60CC(2)(b) does not assume relevance in the way the mother would assert but does assume relevance in the ways asserted by the father and learned counsel for the ICL.  To reiterate, the evidence does not establish a need to protect W from physical or psychological harm or being subjected to or exposed to abuse, neglect, or family violence if she is in the unsupervised care of her father. The evidence establishes the possibility of the risk of psychological harm if she continues to primarily reside with her mother.  The source of that possible psychological harm is not in doubt.  It is the mother’s unshakable belief or hitherto unshakable belief that the father has drugged and sexually abused W, herself, and W’s siblings and, if given the chance, will do so again to W.

2. The evidence goes somewhat further, and establishes that in the absence of something else happening, that will not change, simply because, as the mother’s evidence makes clear, only by someone proving she is wrong will the mother change her view.  As noted earlier, that cannot happen.  It is impossible to prove her wrong.  Her beliefs are, to that extent, self-reinforcing. 

3. Section 60CC(3), which relates to the views of W, is not relevant.  W’s relationship with each of her parents is relevant.  She has a limited but very satisfactory relationship with her father.  Save in the one, albeit important, respect identified throughout these reasons she has a primary attachment relationship with her mother, which, other than in that respect has not been shown to be other than satisfactory in every way.  It could be said that the father’s relationship with W could only be of the level it is, given particularly that he has only had supervised contact for a period of two years and three months, because of the mother’s actions or lack of actions to inhibit or impede or destroy that relationship. 

4. There is a distinction between a primary attachment relationship such as the mother has, and a significant and well-established relationship such as the father and W have.  The distinction, however, cannot be ignored, nor can the expert opinion evidence as to the attenuation of that relationship which is likely if there is a change of primary residence. 

5. The nature of W’s relationships with other persons is relevant in this case by virtue of T and L.  It would not be appropriate, on the evidence, to overstate the significance of those relationships.  Not surprisingly, at 16 and 11, T and L have quite different relationships with their three and a half year old sibling.  Dr R’s report accurately summarises the significance of that factor. 

6. What is significant is that whilst a change of primary residence would attenuate the child’s primary attachment relationship with her mother, it would also create, again, a novel situation in that W would cease to live, on a day-to-day basis, with the two sisters with whom she has lived for the whole of her short life.

7. The practical difficulty and expense of time being spent cannot be ignored in this case.  It is quite apparent that any orders this Court makes or could make will have some financial impact on these parties.  Both are dependant upon welfare payments.

8. The capacity of the parents to provide is a matter which assumes significance.  As noted earlier, the differences here are essentially between an untried father on the one hand and a mother who has been, one could say, sorely tried, on the other and been found wanting in only one, albeit very important, respect. That relates to W’s emotional needs.  Quite simply, if the Court accepted that the mother could not ameliorate her beliefs, then her capacity would be fatally flawed, and this factor would assume potentially decisive significance.  The evidence suggests that the mother may not be capable of ameliorating her beliefs and recognising that she simply cannot, in the absence of any evidence to that effect, persist with her claims of abuse and be ever on the lookout for evidence in support of them.

9. The Court has wrestled with the evidence, both lay and expert opinion evidence of Dr R.  The evidence falls short, ultimately, of persuading the Court on the balance of probabilities that the mother cannot and will not abandon her unshakeable belief.  She might not.  There are counter-indicators which Dr R identified, but applying the civil standard of proof, the Court is not able to find, on balance, that the mother cannot and will not.  She certainly cannot and will not without assistance.  An impediment to her successfully seeking assistance is her abiding belief that she does not require assistance despite reiterating, as she did several times yesterday, that she would seek and undertake all such assistance as the Court directed her to take. 

10. Whilst, in the case of the father, there is no reason to believe that he could not provide adequately for W’s emotional needs, the fact remains, as the evidence of Dr R confirms, that the highest the Court can find in that regard is that there is no reason why he could not do so.  The Court is unable, objectively, to find that the father has that capacity at present.  That is not his fault, but as noted earlier in these reasons, the Court must, in the pursuit of the best interests of the child, make findings on the evidence. Exculpatory or extenuating circumstances on the part of a parent cannot change what the evidence reveals or fails to reveal.  The father may acquire that capacity, but time alone will tell if he can.  It is also to be remembered that this would occur in the context of a very significant change in the lifestyle of W and would raise issues about which the father is, through no fault of his, very much an unknown quantity.  

11. Thus, in relation to capacity, there is a dichotomy.  The mother is, save in the one very significant respect to which reference has repeatedly been made, a known commodity and a good parent.  She has one very substantial handicap in this contest.  The father has no corresponding major impediment, but he does have very substantial unknown aspects in relation to his capacity.  As stated a few moments ago, there is no reason to doubt that he could do these things.  That does not automatically translate into a finding, on the balance of probabilities, that he could do them.

12. Subsections (g) and (h) are not relevant.  Subsection (i), the attitude to parental responsibilities, has largely been picked up in the Court’s review of the evidence and the preceding section 60CC(3) factors. To reiterate, the mother’s attitude to the responsibilities and duties of parenthood does fall well short of acceptable.  Unless that were to change, there is little doubt that whatever the difficulties in the short term for W of changing her primary place of residence, that would have to happen.

13. Family violence is not relevant.  Section 60CC(4) identifies a number of matters which are relevant to the matter identified in section 60CC(3)(c) relating to willingness to encourage relationships and (i), attitude to parental responsibilities.  The Court has referred to these matters earlier, and it is unnecessary and unproductive to again refer to them. 

14. What, then, is the order in the best interests of this child?  The Court has agonised over this, given that there is no solution which can be said to clearly be in W’s best interests.  Ideally, any orders the Court makes should be likely to be final, subject to the inevitable prospect of further litigation as envisaged by section 60CC(3)(l).  How realistic that can be in a case such as this is hard to know, given the uncertainties on both side of the case.

15. The Court has ultimately opted for what it perceives to be, though less than satisfactory, the best outcome in terms of the welfare of W.  The Court has some reservations about making orders in the terms proposed by virtue of or by reason of considerations of natural justice and procedural fairness.  Albeit in the context of an international relocation case, the High Court made clear in the decision in U v U (2002) 211 CLR 238 two things. One is that the Court is not bound by the competing proposals of the parties. The second is that whilst not so bound, the Court, as a matter of natural justice and procedural fairness, has an obligation to agitate with the parties a course which was either not within the ambit of the pleaded positions and the evidence, or one which nobody was asking the Court to adopt.

16. The record will show that the orders the Court makes in this case were never specifically traversed with counsel for the parties.  If that gives rise to appealable error, so be it.  The Court is, however, satisfied that the evidence before it, and the submissions of the parties before the Court sufficiently engaged with each of the matters which will be referred to in the orders shortly to be made to preclude making those orders constituting a denial of natural justice, or a failure to afford procedural fairness. 

17. As will be apparent from the minutes of order sought by the ICL and embraced by counsel for the respondent, the orders proposed by each of them, for good reason, involved a number of contingencies or orders to meet a variety of contingencies. Some of them appeared to come close to involving other persons in the proceedings on an ongoing basis, and that was not surprising.  There is no suggestion that the evidence presented was curtailed or constrained in any relevant way.  To the extent that the Court might not have specifically raised the form of orders which it ultimately has concluded to be in W’s best interest, with respect to counsel, no submissions which could have been made would have persuaded the Court not to make orders in those terms, essentially because of the unknowns in the case.

18. Before making the orders, it is perhaps appropriate to shed some light on them.  To go back, Dr R’s original report contemplated a review of or potential review of arrangements after a period of 12 months.  The minutes of order initially advanced by counsel for the father were, in some respects, not dissimilar.  At the risk of oversimplification, the difficulties which the Court has identified, come down to two topics.  The first relates to the mother’s abiding belief that W has been abused and will be abused again by the father if he has the opportunity. 

19. As noted earlier, but for that, the Court would have little difficulty in concluding that W’s best interests would be served by primarily residing with her mother.  On the other hand, to remove this three and a half year old child from the primary care of her mother and place her with her father against the background of the limited experience which, on his own evidence, he has had of caring for her and the absence of support networks which Dr R identified, and they were extensive, could, with respect to the father and through no fault of his, be described as a leap of faith.  Conversely, albeit of a quite different nature, to simply leave the child in the care of her mother in the hope that somehow or other, in some unidentified way, things would change would also be in the nature of a leap of faith. The latter course could probably be said to be a somewhat greater leap than that relating to the father. 

20. The Court ultimately has concluded that the best interests of W would be served by ordering that, subject to what follows, as and from 1 March 2011, in the absence of any Court order to the contrary, the child primarily reside with her father and he have sole parental responsibility for her.  Orders to that effect will shortly be made.  During the intervening period, the orders will provide that the father have unsupervised time with W on the following basis:

    a)Until the child commences school, one day during each week, which shall, in the absence of agreement between the parents, be each Wednesday from 10 am to 4 pm;  also, on one day each weekend which shall, in the absence of agreement between the parents, be each Saturday from 10 am to 4 pm.

    b)As and from 1 November 2010, in lieu of each Saturday, each alternate weekend from 10 am Saturday to 4 pm Sunday.

    c)As and from 1 December 2010, the father would also spend time with W for one week of each school holiday period which, in the absence of agreement between the parents, would be for the period of seven days commencing with the first Monday of each mid-year holiday period at 10 am, concluding on the Sunday following at 4 pm, and be for the seven days commencing at 10 am on 26 December and concluding at 4 pm on the seventh day following. 

21. The orders will provide that, in the absence of agreement between the parents, time spent by the child W with the father, pursuant to the Court’s orders, would be commenced by the father collecting W from the mother at McDonalds at B, and be concluded by the mother collecting the child from the father at McDonalds at E.  It will be readily perceived that the incentive to make sure the funds are there to do the travel rests upon the party who is due to receive the child.  Without being overly cynical, the common experience is that when about to receive a child, there seems to be a greater capacity to do these things than there might be when returning the child.

22. The orders will further provide that subject to any contrary order of the Court, as and from 1 March 2011, from which time the father will have sole parental responsibility for W, the mother is to spend the time with the child pursuant to the orders which the father is provided for by these orders.  Finally, the orders will provide that either party have liberty to apply after 1 January 2011.

23. It will be readily apparent that these orders make no provision whatsoever for either party doing anything in terms of their arrangements for W’s care.  That is not inadvertent.  Nor is the form of the orders.  Objectively, unless after 1 January 2011 and prior to 1 March 2011 the mother moves the Court in reliance upon expert opinion evidence from a treating medical professional, these orders will operate in the way indicated.  That is not to say that if the mother does produce such medical evidence that anything would be any different, but it can be described, not inaccurately, as one preserving for the mother last chance to avoid losing W.

24. Lest it be thought that the chances are being directed to one party only, that is not the case.  The Court has endeavoured to explain throughout these reasons its concern on the evidence as to the unknowns in the father’s arrangements.  Objectively, the time spent regime between W and her father as provided by these orders will provide him with not only time in which to make the kinds of connections which Dr R identified, but also to spend the time with the child which will assist to minimise the attenuation of her primary attachment relationship to her mother. 

25. These orders are less than entirely satisfactory.  The Court does not pretend otherwise.  It is, however, significantly influenced by the overriding obligation to do what is in the best interests of W.  There is an absence of any entirely or even nearly entirely satisfactory scheme of orders, the probability that whatever orders were made in favour of either party, there is a high probability, if not an inevitability of further litigation, and the reality that this is a very young child with potentially many years of her upbringing to be facilitated as well as can possibly be the case. These factors ameliorate the undesirable course which the Court has taken in this case.

26. For those reasons and, again, acknowledging that these orders are not ideal, the Court makes orders in the terms which have just been indicated.  Having drafted them earlier this morning, and subject to typographical errors which sleeplessness may have produced, I will make those available so that you have got them, and then what will happen will happen. 

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate: 

Date:  13 August 2010