Materanzi and Suskain (No 4)

FAMILY COURT OF AUSTRALIA

MATERANZI & SUSKAIN (NO 4)

[2011] FamCA 337

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

APPLICANT:

Mr Materanzi

RESPONDENT:

Ms Suskain

INDEPENDENT CHILDREN’S LAWYER:

Mr O’Dowd

FILE NUMBER:

SYC

776

2010

DATE DELIVERED:

14 April 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

21,22,23,24,25 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Mr White

SOLICITOR FOR THE RESPONDENT:

Tiyce & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

Orders

That all previous parenting orders in relation to the child H born …6 April 2004 be discharged.
That the mother and the father have equal shared parental responsibility for H provided that the father has sole responsibility for making decisions about her education and medical treatment in default of agreement by the parents.
That H live with the father.
That H spend time with the mother during school term time as follows:
4.1each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, and
4.2from the conclusion of school on Thursday to the commencement of school on Friday in each other week, and
4.3at other times as agreed between the parents in writing.
That in the event H is late for school on three occasions in any one school term period while in the mother’s care, H’s time with the mother in accordance with order 4.1 is to end at 7:00pm on Sunday and H’s time with the mother in accordance with order 4.2 is to end at 7:00pm on Thursday.
That H spend time with the mother for one half of all school holidays for the first half in years ending in an odd number and for the second half in years ending in an even number, commencing with the July 2011 school holidays.
That H’s time with the mother is suspended and H shall be in the care of the father from 5:00pm on Christmas Day until 5:00pm on Boxing Day in years ending in an odd number and from 5:00pm on Christmas Eve until 5:00pm on Christmas Day in years ending in an even number.
In the event that H’s birthday falls on a weekend when H is not in the care of the mother, H shall spend time with the mother for three hours from 9:00am to 12noon that day and in the event H’s birthday falls on a week day during school term when H is not in the care of the mother, H shall spend time with the mother from 9:00am to 12noon on the Saturday nearest in time after H’s birthday.
In the event that Mothers Day falls on a weekend when H would not be in the care of the mother on that day, H shall spend time with the mother from 9:00am to 5:00pm on Mothers Day.
In the event that Fathers Day falls on a weekend when H would not be in the care of the father on that day, H shall spend time with the father from 9:00am to 5:00pm on Fathers Day.
That the mother shall facilitate telephone contact between H and the father at a minimum of once per week during periods of school holiday time when H is in the mother’s care.
That with the exception of those occasions when H is taken to and from school at changeover, the mother and the father will make H available for changeover at Changeover Venue 1.
In the event that either parent wishes to remove H from Australia, he or she shall provide to the other parent at least two months prior written notice and a copy of the itinerary, details of contact telephone numbers and addresses and a proposal by way of security bond or otherwise to facilitate the return of H to Australia.
That upon receipt of the details in order 13, the parent not proposing to take H overseas shall not unreasonably withhold his or her consent to the proposed trip and shall thereafter do all acts and things and sign all documents necessary to facilitate H’s travel.
That in the event of consent pursuant to order 14 being withheld, the parent proposing the trip shall seek the consent of the Court for the trip.
That the mother and the father are hereby restrained by injunction from:
16.1denigrating or criticising each other or members of each others extended family to or in the presence or hearing of H
16.2discussing any aspect of these proceedings or any associated court proceedings to or in the presence of H
16.3showing any documents relating to these proceedings or any associated court proceedings directly or indirectly to H including through any third party
That both parties forthwith do all things and execute all documents required to cause H to be known for all purposes by the surname “[SUSKAIN-MATERANZI]”.
That the mother is hereby restrained by injunction from taking H to any medical practitioner without the prior written approval and consent of the father, except in the case of an emergency.
That each party notify the other, as soon as practicable, and in any event within 24 hours, of any serious injury or illness suffered by H and requiring hospitalisation while in the care of the other party.
That the mother and the father each maintain an email account and keep the other informed of his and her current residential address, email address, mobile telephone number and land line telephone number at all times and notify each other of any change in their residential address, email address, mobile telephone number and/or landline telephone number within 48 hours of any such changes.
That the father attend upon an appropriately qualified professional as recommended by Dr R to assist H with the transition of her living arrangements pursuant to these orders.
That within six months of making these orders the father do all acts and things necessary to establish a residence in Area 1 in southern Sydney.
That the father and Legal Aid NSW will be responsible to share equally the cost of Dr R in relation to reading updated material, preparation for court attendance, travel expenses to attend court in person and attending court and giving evidence at this hearing.
That the order for the appointment of the Independent Children’s Lawyer be discharged three months after the making of these orders.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.

It is noted that publication of this judgment under the pseudonym Materanzi & Suskain (No 4) is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 776 of 2010

Mr Materanzi

Applicant

And

Ms Suskain

Respondent

REASONS FOR JUDGMENT

the proceedings

Mr Materanzi and Ms Suskain are the parents of a little girl, H, who was born in April 2004 and is now 7 years of age. H has been at the centre of litigation between her parents since she was only a few weeks old.
This unfortunate history commenced with the father’s application filed on 28 May 2004. There were a number of interim orders during 2004/2005 and the proceedings were then listed for a five day trial from 13 to 17 November 2006.
On 17 November 2006 final orders were made by consent, after several days of hearing. Essentially these orders provided that the parties have equal shared parental responsibility; that H live with the mother and spend graduated periods of time with the father, leading to alternate weekends and half of all school holidays. On 6 February 2007 the parties entered into a written agreement to vary some of the detail of these orders.
Late in 2006 the mother commenced a relationship with her current partner, Mr P. They began to live together at Sydney suburb 1 in January 2007 and married in November 2007. They have two children, J, who was born in January 2008, and D, who was born in January 2009.
Mr P is employed in health care at Hospital 1. His work hours vary and include night shifts. The mother does not work outside the household.
In January 2009 the father began a relationship with his current partner, Ms B. They began to live together at Sydney suburb 2 in August 2009. Her 18 year old son, M, is part of their household.
Ms B is employed as an office worker at Sydney suburb 3. Currently her work hours are 7:00am until 4:00pm Monday to Friday but some flexibility is available to her.
The father devotes 8 to 12 hours per day to his work as a consultant. He travels to various metropolitan areas to see clients and has an office at home. He also has flexibility with his working hours.
There have been two sets of allegations that the father sexually abused H. Police records (exhibit 12) note that on 6 October 2007 a Joint Investigation Response Team (‘JIRT’) received a Risk of Harm report. JIRT accepted this referral and carried out an investigation into these allegations.
The mother made a statement to police on 6 October 2007 and H was interviewed on 11 October 2007. Police officers attended the father’s home and interviewed him on 12 October 2007.
In October 2007 the Children’s Court made an emergency care and protection order for 14 days. This order was extended for a further 14 days and expired on 13 November 2007. There was no further action taken in the Children’s Court.
H’s time with the father was suspended on 12 October 2007 and resumed after the end of the Children’s Court proceedings in mid-November 2007. JIRT concluded that the allegations of sexual abuse were unsubstantiated.
During the course of the JIRT investigation H was interviewed by police and Department of Community Services (as the Department was then known - ‘DOCS’) officers and subjected to a medical examination. JIRT officers formed the view that there was a risk of psychological harm to H due to the ongoing conflict between her parents.
The father claimed that the mother was consistently late in delivering H for time with him in accordance with the 2006 orders. H did see him regularly, however, until the mother made a second set of allegations of sexual abuse in 2009.
Police records (exhibit 12) note various incidents when officers were involved in disputes between the parents during changeovers at S police station. The same records document numerous attendances at the home of the mother and Mr P in relation to disputes between them.
On 29 January 2009 H started kindergarten at S Primary School in Sydney suburb 1. That day there was an altercation between the parents in the school grounds. The father reported the incident to police, who obtained an interim apprehended violence order for his protection and that of H. A final apprehended violence order was issued against the mother in May 2009, after a contested hearing in the Local Court. It seems that H was removed from the operation of the order.
On 20 March 2009 the school principal wrote the first of several letters to the mother, concerning H’s consistently late arrivals. H continued to be late for school during 2010 and 2011.
On 22 June 2009 the mother took H to Hospital 2 following another complaint of alleged sexual abuse by the father. Again H was interviewed by JIRT officers and subjected to a medical examination.
JIRT again concluded that the allegations of sexual abuse were unsubstantiated. The officers formed the view that there was reason for concern as to H’s ongoing well-being in the primary care of the mother.
On 30 July 2009 there was another incident between the mother and the father at H’s school. The father again made a report to the police, who charged the mother with breach of the apprehended violence order. She was convicted of this offence.
On the weekend of 19-22 June 2009 H spent time with the father for the last occasion until 2 June 2010. Litigation recommenced on 9 February 2010, when the father filed a fresh application, Notice of Child Abuse and contravention proceedings. On 25 May 2010 the mother filed a response and a Notice of Child Abuse in relation to the June 2009 allegations of sexual abuse of H by the father.
On 31 May 2010 interim orders were made which provided that H spend time with the father each Thursday afternoon and every Sunday under the supervision of the paternal grandmother, Ms C. H first saw the father again on 2 June 2010, after a break of almost 12 months.
The proceedings were listed for final hearing for 5 days commencing on 7 February 2011. For reasons which it is not now necessary to canvass, this trial was aborted on 9 February 2011. The proceedings were listed then before me, to commence on 21 March 2011.
On 9 February 2011 interim orders were made in accordance with a proposal put by the Independent Children’s Lawyer (‘ICL’), to the effect that H spend time with the father each Thursday afternoon and every alternate weekend under the supervision of either the paternal grandmother or the father’s partner. Counsel for the mother informed the court that she sought that all time with the father continue to be supervised.
In an Outline of Case document submitted on behalf of the mother on 18 March 2011, being the last working day before the trial started, it was indicated that “she no longer presses the allegations of sexual abuse made against the father”.Her counsel wrote:
“For the avoidance of doubt, the mother no longer presses the allegations of sexual abuse made against the father. Whilst the mother genuinely believed at the time that the allegations may be true and needed the investigations by the proper authorities, she is satisfied with the outcome of the JIRT investigations and accepts their conclusions”.
There was no previous indication whatsoever of this significant shift in the mother’s case.

Approach to These Proceedings

In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.
Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.
The court must have regard to the objects of Part VII, as set out in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child’s right to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
“[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”…

In Cowley v Mendoza [2010] Fam CA 597 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR. I extend my gratitude to my learned colleague for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.
When a court makes or contemplates making a parenting order, it must:
·apply the presumption of equal shared parental responsibility
·determine whether there is abuse of a child or family violence, which means that the presumption does not apply
·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility
·if the presumption applies:
¨   determine whether it is in the child’s best interests for there to be an order for equal time with each parent
¨   make findings as to the matters set out in section 65DAA(5) which are:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
¨   as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable
¨   if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order
·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests
A leading decision on the approach to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166CLR 69. Their Honours said (at page 76):
“…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.”
and at page 75:
“…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.”
In M and M the High Court identified the relevant standard of proof as (at pp76-77):
“In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’”
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
“140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(3) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.”
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
“In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
“In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.”
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?”
I would respectfully observe that this series of questions is a useful, practical tool in the determination of the issue of “unacceptable risk”.

The Evidence and Witnesses

The applicant father relied on the following affidavits:
1.Mr Materanzi (the father) sworn 5 February 2010 and 31 January 2011
2.Ms C (paternal grandmother) sworn 31 January 2011
3.Ms B (father’s partner) sworn 31 January 2011
4.Ms O sworn 7 February 2011
The respondent mother relied on the following affidavits:
1.Ms Suskain (the mother) sworn 25 May 2010, 11 February 2011 and 11 March 2011
2.Mr P (mother’s husband) sworn 25 May 2010 and 9 March 2011
3.Ms T sworn 8 March 2011
I had the benefit of the following independent and/or export reports:
1. Dr M (psychiatrist) dated 2 October 2006
2. Magellan report dated 16 July 2010
3.Dr R (psychiatrist and single expert) dated 25 November 2010
I also had the benefit of oral evidence from Dr R.
The mother suffers from a significant hearing impairment. There was some dispute about whether she required a scribe or had sufficient lip-reading ability to participate unaided in the proceedings. I had no expert evidence as to her lip-reading ability, thus I declined the invitation of counsel for the father to force the mother to continue the proceedings without a scribe. It seemed to me to be inherently dangerous to do so and potentially most unfair to the mother.
The trial thus proceeded, using a combination of technology and written material by the Spanish interpreters who were present for the assistance of the mother. The book containing this written material was in evidence (exhibit 16). The mother is able to read and speak English.
A number of substantial issues arose during the trial, including the following:
·the significance of the allegations of sexual abuse
·violence between the parents and the mother and Mr P
·the stability of the current relationships of each of the parents
·the capacity of each of the parents to provide for H’s needs
I will now consider in turn each of these broad areas.

The Allegations of Sexual Abuse

As noted, the JIRT investigations in 2007 and 2009 concluded that there was no substance to the allegations that the father sexually abused H. The single expert, Dr R, reached the same conclusion. I refer below to Dr R’s evidence on this issue.
In 2007 DOCS officers noted:
·“[H] has complained of a ‘burning’ sensation around the genitals and that this generally occurs after access with her father
[H] also disclosed to her mother that ‘papa touches me down there’ (referring to her genitals)
[Dr A], [H’s] GP, examined [H’s] genitals and reported that they were normal. After a urine test it was identified that [H] had a urinary tract infection which is not uncommon and explains the soreness and burning when passing urine
During interview at JIRT [H] was asked directly if papa touches her on the genitals (via body chart) and she said clearly ‘no’.
·The allegations of sexual assault is (sic) not substantiated, however, there is substantiated risk of harm to [H] due to her exposure to the ongoing conflict between her parents and the difficulties with the handover for contact.
·The ongoing conflict between her parents and their inability to co-parent [H] or interact with each other in a civil manner, puts [H] in the middle of a highly acrimonious situation and means she is highly vulnerable to harm, psychological, emotional and possibly physical should this escalate.”
On 8 November 2007 JIRT concluded:
“The sexual assault allegations have not been substantiated however, the risk of psychological and emotional harm has been substantiated. Ongoing conflict between the parents presents a ROH to [H’s] psychological and emotional development, and impacts on her ability to form safe secure relationships with her parents…”
In 2009 JIRT again concluded that the allegations of sexual abuse were unsubstantiated but expressed serious concerns as to the quality of the mother’s care of [H]. JIRT officers noted:
“There is no evidence of immediate and serious safety concerns for [H], however JIRT investigation has raised multiple concerns about [H’s] ongoing safety and well-being in the primary care of her mother, [Ms Suskain]. Through interactions with [the mother], she outwardly indicates extreme concern for [H’s] well-being; however it is apparent that concern for [H’s] well-being is the vehicle for [the mother’s] unyielding focus on persecution of [H’s] father, [Mr Materanzi]. Both [the mother] and [H] indicate a strong affection for each other and desire to remain together, [the mother] is unable to demonstrate protective factors to ensure [H’s] safety. [The mother] lacks formal and informal support systems, [the mother] appears to have chaotic and aggressive behaviour and has been unable to maintain engagement in any prior support program. [The mother’s] current relationship is characterised by domestic violence, which does not provide protection for [H].”
In her report of 25 November 2010 Dr R expressed this view of the validity of the sexual abuse allegations:
“There does not appear to be any evidence [H] has been sexually abused by her father and the allegations should not interfere with her relationship with him. Very relevant is how the allegations arose. It seems that, whenever [H] experiences genital discomfort, her mother has assumed the worst from her father. Knowing of the parental antipathy, [H] could have also contributed to the spread of misinformation by blaming her father, for example, [the mother’s] Statement of a Witness 6 October 2007, in which is described how [H], who was ‘playing with her genital area’, told [Mr P] ‘[the father] touched her down there’. [H] has been repeatedly questioned about this subject.”
The mother’s attitude to the allegations of sexual abuse requires very careful consideration. There can be real doubts as to whether she genuinely believed at any stage that the father sexually abused H. If she did hold this belief, it must be questionable that she has genuinely changed her mind. There must be real reservations about her attitude to the father, and H’s relationship with him, arising from her persistence with the allegations despite two findings by JIRT and Dr R’s opinion.
The mother swore an affidavit 10 days before the start of the trial before me. The only reference to the serious allegation that the father sexually abused H was:
“In October 2007 [H] made disclosures of sexual abuse by her father. I attended the police station after the three times she complained and after she was behaving strangely. An investigation took place but the police found not enough evidence to proceed.”
As noted, the mother’s Outline of Case document provided the first indication that she no longer sought a finding that the father sexually abused H, and/or that she would be placed at unacceptable risk in his unsupervised care. Unsurprisingly, she was cross-examined in some detail about her attitude to these allegations.
The mother agreed that she told Dr R that she believed JIRT failed to properly investigate the allegations and that she did not accept their conclusion that no abuse had occurred. She maintained that “it is not true that Forrest J was not told that I no longer believed that H had been sexually abused because I continued to believe that she had been abused”. Nevertheless, she conceded that her counsel sought continuing supervision of H’s time with the father when the February 2011 trial was aborted.
The mother suggested that she came to the view that H had not been sexually abused after she read Dr R’s report “earlier this year, after Christmas and New Year”.She said that she changed her mind “I can’t exactly say, in early 2011. I think it was in December”.
The mother conceded that she took no steps to inform the father of her change of belief. In an email of 22 January 2011 the father’s solicitor requested that he have more time with H, pending the February 2011 trial. The mother claimed that she could not remember refusing this request but there was no increase in time.
The Magellan report of 16 July 2010 set out the results of the two JIRT investigations in clear and unambiguous terms. As to the 2007 allegations the report stated:
“It was established [H’s] genital area was normal without abrasions, swelling, inflammation or bruising. [H] had urinary tract infections. This can be common for a child of [H’s] age. [H] was treated with antibiotics.
JIRT investigation occurred. Sexual abuse allegations not substantiated. It was established ongoing conflict between parents presents a ROH to [H’s] psychological and emotional development, and impacts on her ability to form safe, secure relationships with parents.”
The report set out the result of the June 2009 investigation as follows:
“JIRT found no evidence of sexual abuse or any immediate safety concerns for [H]. JIRT raised concerns about [H’s] ongoing safety and well-being in the primary care of her mother.”
The author of the Magellan report summarised the JIRT findings as follows:
“Following JIRT investigation, allegations of sexual abuse not substantiated. There is substantiated risk of harm to [H] due to exposure to ongoing conflict between her parents and difficulties with handover for contact.
During JIRT investigation [H] was examined and there was no evidence of sexual abuse. A urine test identified [H] had a urinary tract infection which is not uncommon for a child of [H’s] age. It was assessed soreness and burning when the child passes urine was due to urinary tract infection.
In JIRT interview [H] was asked if papa touches her on genitals (via body chart). She said ‘no’. [H] was assessed as a bright child who presents as well cared for and appears to be meeting developmental milestones in terms of motor skills, cognition and emotional development…”
The mother denied that she ever saw the Magellan report before it was shown to her in cross-examination on 23 March 2011. This denial sits most uncomfortably with the fact that a Registrar sent a copy of the report to the mother under cover of a letter dated 21 July 2010. The letter was addressed to the mother at Mr P’s house, in Sydney suburb 1, where she had lived since January 2007.
This letter advised of a telephone mention in the proceedings and set out details of the dial-in procedure. The bench sheet for this mention showed that one Ms Graves of counsel appeared for the mother. Unconvincingly, the mother refused to concede that Ms Graves could only have known of this mention and the dial-in details by way of the letter. As the mother was then unrepresented by any solicitor, this conclusion seems to me to be inescapable. I thus accept that she received a copy of the Magellan report in July 2010.
I am suspicious that the mother abandoned the allegations of sexual abuse only for tactical reasons, in an attempt to assist her case. It may be that she never held a genuine belief that the father sexually abused H but that she seized on opportunities to think poorly of him. As appears below, Dr R formed that view of the mother’s attitude to the allegations of sexual abuse.
I have carefully considered the evidence in relation to these allegations. Independently of the mother’s abandonment of the allegations, I am comfortably satisfied, and I find to the requisite standard, that the father did not sexually abuse H. I find that the child would not be placed at unacceptable risk of sexual abuse in the unsupervised care of the father.

The Allegations of Family Violence

The mother alleged that the father subjected her to sustained physical violence and verbal abuse during their relationship. There was a wealth of objective evidence that the relationship between the mother and Mr P is characterised by verbal abuse, conflict and perhaps physical violence.
The mother set out the details of her allegations of the father’s violence in her affidavit of 25 May 2010. She claimed that he frequently became angry, threw food and damaged objects in their home. She alleged that he punched her face when she was pregnant with H. She claimed that he slapped her face and spat on her on two occasions shortly after H’s birth.

The mother alleged that the father punched a mattress near H’s head when she was a baby. She claimed that she put H into their bed and her crying woke the father. She maintained that he became angry and punched the mattress. Further, she claimed that he smashed H’s high chair and baby rocker and threw her pram, causing damage to the front door of their home.
The father admitted that he swore at the mother during her pregnancy. He denied that he threw food or punched her. Otherwise, he denied the mother’s allegations of violent behaviour and spitting at her and H, as detailed in her affidavit of 25 May 2010.
The father alleged that the mother frequently became very angry and threw and smashed objects in their home. He claimed that she hit him on two occasions. The father strongly denied that he ever directed violence at H or that he spat on her.
On 13 April 2004 the mother obtained a telephone interim apprehended violence order (‘AVO’) against the father, after he left their home following an argument. He consented to a final AVO for 12 months on 19 May 2004, on a “without admissions” basis.
As noted, an AVO was issued against the mother for the protection of the father in 2009. The final AVO was made after a contested hearing and the mother was also convicted of an assault of the father. She was placed on a 2 year good behaviour bond.
The AVO and the mother’s conviction for assault arose from a most unfortunate incident on H’s first day of school. The father attended the school in the afternoon to collect her in accordance with the orders of 17 November 2006. He was accompanied by two friends, one of whom was Ms O.
The father alleged that the mother suddenly appeared as they were walking towards his car. He was holding H in his arms. He claimed that the mother screamed “help, help, call the police” and “give me my daughter”.He said that she grabbed H underneath her arms and pulled her away from him. Ms O corroborated the father’s account.
The father’s evidence of this incident was unchallenged and Ms O was unshaken in her account. My conclusion is thus that the mother behaved in a very volatile and inappropriate manner, without any apparent justification, on this occasion. Her screaming and attempts physically to pull H out of her father’s arms must have been highly distressing to the child.
The Local Court issued an AVO and convicted the mother of assault, after the testing of evidence, on the strength of this incident. The mother complained that she was disadvantaged by her hearing impairment during the Local Court proceedings. She conceded, however, that she had the assistance of a person who typed questions on a computer for her. She was unsuccessful in an appeal to the District Court.
There was no independent evidence to corroborate the mother’s allegations that the father directed violence at her and H. As noted, the mother suffered adverse legal consequences as a result of the incident between the parents on H’s first day at school.
As appears below, some of the mother’s allegations to police of inappropriate conduct on the part of Mr P were identical to 2 of her complaints about the father’s behaviour. Further, there was evidence that she came into conflict with other residents at a refuge where she stayed in 2004 and that she made unjustified allegations about their behaviour.
I agree with the submission of counsel for the ICL that the mother failed to prove her allegations that the father directed violence at her and H. He conceded some inappropriate conduct, which I have identified above in these reasons. I am inclined to accept his evidence of the mother’s volatile behaviour and throwing and smashing of chattels in their home. I attach significance to the fact that there was no suggestion that the father directed violence at any person other than the mother.
I find that the father engaged in conduct which could be described as “violence” during the parties’ relationship. It seems to me that this behaviour was confined to a volatile situation and has not since been repeated with the mother or any other person. This behaviour is now of some antiquity, and, in my view, does not play a significant role in the outcome of these proceedings. I am far from satisfied that the father ever directed violence at H.
On the other hand, the mother has been convicted of an assault of the father and she has been made the subject of a final AVO for his protection. She has been convicted of breaching the AVO. I find that the mother has directed violence at the father.
The father alleged that the mother hit H on the mouth and cut her lip. He notified DOCS, whose officers interviewed the child but elected to take no action. I cannot be satisfied that the mother caused any such injury to the child.
On 25 May 2009 a teacher at H’s school notified DOCS that she stated “I feel sad when Mummy punches me” during a class exercise. It appears no action was taken. Again, I cannot be satisfied that the mother punched H.
The police records (exhibit 12) contain numerous entries in relation to incidents between the mother and Mr P. They both now attempt to minimise these events. The mother was given the opportunity to provide written responses (exhibit 13) to the COPS entries tendered in evidence and took issue with most of their contents. Mr P said that the police attendances at their home were due largely to “miscommunication” between the mother and himself.
As noted, some of the mother’s complaints to police about Mr P were identical to allegations which she made against the father in these proceedings. She swore in her affidavit that the father spat at her. The COPS entries for 13 July 2008 and 8 February 2010 noted that she complained that Mr P spat at her. The mother denied that she told police that he spat at her on 13 July 2008 and made no comment about the 8 February 2010 entry. Mr P said that he could recall the mother complaining twice to police that he spat at her.
The mother swore in her affidavit that the father threw H’s pram and damaged the front door of their home. The COPS entry for 20 March 2010 noted that she alleged that Mr P “throws a pram out onto the road”. The notes indicated that police officers saw in the lounge room a pram which appeared to be undamaged.
The COPS entry for 22 March 2010 recorded that police had by then attended the home of the mother and Mr P on 30 occasions. They both denied that there had been so many attendances but I cannot imagine why police officers would note this information incorrectly. It is very disturbing that police officers have attended the premises so frequently.
It is instructive to consider some of the reasons for these attendances recorded in the police notes. It appears that the mother does not hesitate to involve the police when she and Mr P have arguments over relatively minor issues.
The police records noted numerous callouts to incidents involving the mother and Mr P. I counted 16 such occasions up to 24 September 2010. Mr P gave evidence that police last attended their home in January 2011.
In several instances the mother saw fit to involve the police solely because she and Mr P had an argument. For example, on 22 July 2008 they argued about their financial situation. The mother summoned police, despite the fact that Mr P had left the premises. By the time police officers arrived, the mother too had left the home. She apparently considered it necessary to attend a police station and report the incident later that day. She made no complaint that she was fearful of Mr P or that he threatened or harmed her in any way.
The police records for 24 June 2008 noted that officers attended the home after the mother and Mr P argued because he took J from the premises. The COPS entry for 18 July 2008 noted that the mother called police after an argument with Mr P about who would deliver H for a contact changeover.
It is unnecessary to set out the reasons for all of the callouts in respect of which COPS entries were in evidence. It is sufficient to note that police officers were summoned many times during 2008, 2009 and 2010 after arguments between the mother and Mr P. This unnecessary imposition on the resources of the police services is a discredit to the mother and Mr P.
The police records indicate that they attended the premises on each of 20,21,22 March 2010, following arguments between the mother and Mr P about a variety of issues. The COPS entry for 22 March 2010 read that the mother told police that she feared for her safety, as the incidents were becoming more frequent, and that she wanted an AVO for her protection. The notes recorded that the mother told police “that she has been the victim of numerous assaults where the person named [Mr P] has been the perpetrator. As a result of these assaults, the victim has sustained bruising and soreness to her limbs and the rear of her head”. The mother denied that she made these statements to police. It seems to me that it would be unusual for the COPS entry to read in this way if she had not done so.
The police records noted at least 9 occasions when some or all of the 3 children were present when police attended their home. On 10 October 2009 there was an argument, which police noted as involved shouting and throwing of furniture. On this occasion a neighbour called police. The COPS entry noted that a child was heard screaming “stop it”.This child was most likely to have been H, as J and D were only about 19 and 10 months old respectively.
The COPS entry for 13 July 2008 noted that police applied for an AVO against Mr P for the protection of the mother. Officers were called to the home after an argument over the purchase of milk and bread. The notes stated that the mother told police that Mr P grabbed her by the throat and pushed her onto a bed. The mother denied that she told police that he grabbed her throat. Mr P admitted that he pushed her onto a bed.
This COPS entry stated that police saw “some redness in the neck area that looked like finger marks”. Mr P said, unconvincingly in my view, “she got the marks from bushes”.
The COPS entry for 21 January 2009 noted “throughout the accused and the victim’s relationship, they have had numerous verbal arguments have come under police notice on numerous occasions”. The notes referred to an argument when Mr P assembled a swing set, which culminated in the mother throwing a can of fly spray at him. Police applied for an AVO against the mother because they saw a red mark on Mr P’s back and he had provided a statement. The evidence did not reveal the outcome of this AVO application but no assault charges were laid against the mother.
I am satisfied, and I find, that there have been at least 2 incidents of physical violence between the mother and Mr P. He admitted that he pushed the mother onto a bed. I have referred to the occasions when the mother had redness on her neck and Mr P had a mark on his back. I consider it more probable than not that they each incurred these injuries in the course of altercations but I cannot say that either of them deliberately injured the other.
The contents of the police records further satisfy me, and I find, that there have been numerous loud arguments between the mother and Mr P. I can only speculate on the effect on the children of their screaming matches and the multiple attendances of police officers at their home. I can confidently assume that H and her sisters would have derived no benefit from this conduct.

The Stability of the Parents’ Current Relationships

There was nothing to suggest any instability in the relationship of the father and Ms B, which began in January 2009. There was no suggestion whatsoever of any violence in the relationship.
Dr R described them as:
“…a couple who, to date, are able to problem solve and disagree without high conflict.”
She reported:
“Describing his relationship with [Ms B], [the father] said he has ‘never been more comfortable…like I am in heaven’ as, even if they disagree, they can talk and not argue. [Ms B] opined it was a ‘great…very healthy relationship’. They feel committed to it and plan to have a baby together.”
In my view, there are real concerns about the stability of the relationship between the mother and Mr P. They agreed that they have separated twice, around the time of the births of their two children, but disagreed as to how long they were apart.
The mother maintained that Mr P “stayed at his mother’s house for a couple of days” after the birth of each child. He said, however, that they were separated for about one month around the time of the birth of each of their daughters. The mother claimed that Mr P came home every day during the separations, whereas he said he visited approximately once per week. He said that he took his clothes to his mother’s home upon of each separation.
The hospital notes of the mother’s admission shortly before the birth of J referred to a separation. The notes for 7 January 2009 stated: “wanted her phone numbers changed since the father of her baby [Mr P] is separated from [the mother]”. There was another reference to a separation in the notes of 14 January 2009.
The mother denied that she told any hospital staff member that she was separated from Mr P but I can think of no reason why the notes would read this way unless she did so. The hospital notes are consistent with Mr P’s evidence.
The DOCS notes of a written interview of the mother on 27 May 2009 referred to a separation (exhibit 15). The file note read:
“N/m stated that [Mr P], her current partner do not live together, however he owns the house (‘he comes and goes’). Further, n/m related that her main support is her mother who is supportive of her.”
The mother denied that she made these statements but, again, I cannot imagine why the Department’s file would contain these notes if she did not do so. It would be greatly concerning if the maternal grandmother was, in fact, the mother’s “main support” as she lives in South America.
The COPS entry for 20 March 2010 noted “Vic 2 stated to police that he believed the relationship was over and was moving out …”.Mr P maintained that he did not make this statement but I cannot imagine why the police notes would read this way if he had not done so.
The numerous police callouts due to their arguments suggest that the mother and Mr P have a volatile and unstable relationship. The police records noted that Mr P left home and stayed at his mother’s house following arguments on at least 2 occasions. He said that he has stayed at his mother’s home on 12 or 13 times but not necessarily due to difficulties in the relationship.
The COPS entry for 8 September 2010 indicated that police attended the home after the mother and Mr P argued about the cleanliness of their premises. An officer noted that Mr P said “I have had a gutful of this shit”, a claim which he denied. He said “I don’t use gutful”.I am inclined to the view that he did express dissatisfaction with the relationship to police officers on this occasion, although perhaps not in those exact words.
Mr P seemed to have remarkably little knowledge of important details of these proceedings for a person in a genuinely close, committed relationship with the mother. He had not read the mother’s affidavits, nor the report of Dr R nor the Magellan report. He was unaware that JIRT had informed the mother that they considered the children to be at risk in her care. The mother did not tell him that she no longer believes that the father sexually abused H. It is concerning that he, a person said to be an integral figure in the mother’s proposal to care for H, was unaware of such significant information.
Dr R expressed concern at these gaps in Mr P’s knowledge of the proceedings, which she regarded as “very unusual”.She said: “I feel concerned that he is so detached that he has not sought that information”.Dr R said of her interviews and observations: “I did not think [Mr P] fully engaged in the process” but added “he was perfectly civil and cooperative”.
I am inclined to the view that the mother and Mr P have separated on more than two occasions but chose not to inform the court of the problems in their relationship. I find it difficult to accept that police, a departmental officer and hospital staff would all wrongly record on several occasions that they were separated or that one of them contemplated an end to the relationship.
All of these matters leave me with serious reservations about the long term viability of the relationship between the mother and Mr P. Dr R shared these concerns. In oral evidence she said: “I have doubts about the stability of the relationship with [Mr P]”.
Dr R offered a prediction about the effect on the mother of a breakdown of her marriage to Mr P. She said:
“…I think she would be enormously distressed and basically unable to cope. Her dependency on others to stabilise her environment would be taken away.”
The mother’s distress would obviously flow on to the children. She has no family in Australia who could help her to cope with this situation, although it may be that some of her relatives would come from South America to assist her. There was, however, no evidence from her family of origin.

The Capacity of Each of the Parties to Provide for H’s Needs

To a large extent the father’s capacity is untested as he has had only limited time with H. The opportunity for them to develop a stronger relationship has been curtailed by the flow-on effects of the sexual assault allegations, which were found by JIRT to be unsubstantiated, and which are now abandoned by the mother.
On the other hand the father has the support of Ms B, who is a committed partner and an experienced parent. He also has the willing assistance of his parents. He and Ms B both have flexible working hours and I am confident that they would make proper arrangements for H’s day-to-day care.
The father plans to keep H at S Primary School at Sydney suburb 1. He and Ms B will move to that area from Sydney suburb 2. This plan indicates to me a commendable degree of child focus on the part of both of them. Ms B is prepared to relinquish a home in which she has lived for 8 years so that H can remain at this school.
In her report Dr R opined:
“[The father] presented as a capable and committed parent, whose positive engagement with [H] at this assessment was confirmed by his mother’s and partner’s observations of them at other times. [The father’s] relationship with [Ms B] appeared mutually supportive and satisfying, albeit still at an early stage”.
In her oral evidence Dr R said:
“I considered extensively the father and [Ms B’s] capacity to provide for [H’s] needs”.
Dr R was asked about the impact of the allegations of violence by the father on her assessment of his capacity to provide for H’s needs. She said: “If the court finds that these allegations are true, it makes him a very concerning person and a very questionable parent”. She added: “I would want to know whether this is a characteriological position with him or if he was reacting totally inappropriately out of character”.
Dr R made it clear that she questioned the father about these allegations. She noted that he made some concessions of inappropriate behaviour, which she recorded as follows:
“He said he used to get upset and angry and leave when confronted with her unreasonable demands. He acknowledged yelling before leaving but denied hitting her or other physical assault although once he pushed her out of the way after she slapped him twice. He asserted [the mother] would swear, saying he was a son of a slut, and, when he replied that his mother was not a slut, she had believed he called her a slut.”
I have set out above my conclusion as to the mother’s allegations of violence on the part of the father. I am thus of the view that these allegations do not detract from his capacity to provide for H’s needs.

I have serious reservations as to the mother’s capacity. Both Dr R and Dr M identified personality traits in her which seem to undermine her ability to be child-focussed and her capacity to meet H’s needs. In her report of 2 October 2006 Dr M opined:
“There was no evidence from the assessment interview that [the mother] is currently psychotic or suffering from a significant depressive illness. However, there is evidence of narcissistic and paranoid personality traits, both in assessment interviews and documentation received about her functioning over time. There was a sense of grandiosity and lack of empathy for others about her presentation. She was self-focussed and it was difficult to get her to focus on [H], which was confirmed by her bringing [H] for the first assessment and her behaviour towards [H] at that assessment. This was consistent with her not recognising the needs or wishes of [H’s] father to form a significant relationship with [H] and for this to be consistent over time, not considering the effect on this relationship of long breaks while [H] is a very young child.”
Dr M’s report continued:
“In my view, the mother has personality dysfunction with paranoid and narcissistic traits dominating.
This is not a short term difficulty associated with stressors as the behaviour in relation to domestic violence agencies confirms over a period of some years. It is not associated solely with violent interpersonal relationships and has been noted in other settings such as at the women’s refuge where there had been a series of conflicts and escalating complaints by [the mother], in the face of a body of other statements from other residents and workers, which does not support her contentions. This has been associated with a strong sense of entitlement to the extent that she has been provided with motel accommodation, financial support and has obtained housing in an affluent area of Sydney, despite having considerable financial and social constraints.”
Dr R was concerned about this feature of the mother’s interaction with H:
“When the family was asked to interact together, [the mother] spoke to her daughters in Spanish and English. [H] and [J] looked at books and their mother encouraged [H] to read out loud, which she did not do and Mum pressured her that the doctor was waiting. As she failed to respond, [the mother] asked [Mr P] why she was like that. He suggested ‘she is shy…not like the attention’ and [the mother] told [H] ‘you cannot be like that’. As [H] began to cut paper with scissors, [Mr P] commented that she was usually more talkative and asked her if she would rather be at school, to which she nodded.”
Dr R’s analysis of this interaction was as follows:
“In the family assessment, her mother was unempathic with [H’s] avoidance of performing, despite her stepfather’s explanation of her shyness. [The mother’s] response to [H] ‘you can’t be like that’ was a worrying indication of a parent failing to consider the nature of her child and the child’s mental life: if this is regularly repeated, it would disturb [H’s] ability to accept herself as she is and could result in the formation of a ‘false’ self ie a construction of self that is made in the image her mother would like her to be, rather than a positive acceptance of her own nature, which would have serious long term consequence to [H’s] identity.”
Dr R offered these opinions and assessments of the mother’s personality and ability to provide for H’s needs:
“[The mother] did not present as having a DSM Axis 1 clinical psychiatric disorder at this assessment. Her marked hearing loss, for which [the mother] has developed only limited compensatory strategies, clearly compromises her communication, with adults and her children. Additionally her cultural expectations could further contribute to the interpersonal difficulties she has in Australia.
However, after giving these special factors consideration, I conclude [the mother] has a DSM Axis 2 impairment in her personality. She was given to hyperbole and generalisation in her descriptions of many events. There are historical suggestions [the mother] has mood disregulation which interferes with her social functioning. She has a history of conflicted interpersonal relationships and did not appear to take responsibility for her contribution to the many incidents of aggression reported to police during her three significant relationships since she has been in Australia. Of note are [the father] and [Mr P’s] descriptions of [the mother’s] anxieties when they are/were away from her and her fears they were having affairs. I agree with [Dr M’s] 2006 summary of [the mother’s] personality dysfunction being of a narcissistic nature. [Ms S’s] lack of insight into her own difficulties makes change unlikely.
Despite extensive investigations and written documentation about the lack of veracity in the sexual abuse allegations, [the mother] holds on to the notion [H] has been sexually abused by her father (which has most serious consequences for [H]). She did not take opportunities to reflect on what could be happening for [H] with the [Area 1] Community Services (see file summary) compiled 28 May 2010 and Magellan report dated 16 May 2010. Similarly she states [H] does not love her father, when there had been ample assessments indicating [H] does have a relationship with him, despite [the mother] not properly supporting her time with him. I believe [the mother’s] parenting capacity is seriously compromised in the most important domains of allowing a child to be him/herself… and facilitating a positive relationship with the other parent.”
In her oral evidence Dr R said of the mother:
“It concerns me how much she takes the position ‘I am in difficulty here, you come and sort my problems out’.
She said also:
“I see a position of entitlement and dependency. I am concerned that she will take on a victim role.”
Dr M’s reference to “a series of conflicts and escalating complaints by [the mother]” referred to a time when she and H stayed in a refuge in 2004. On 30 September 2004 she received a written warning, to the effect that she would be required to leave unless she made specified changes to her behaviour (exhibit 10).
This letter set out these reasons for the warning:
“Your behaviour has become unacceptable and incompatible with that required of a communal household.
Frequent requests by staff and residents to modify your aggressive behaviour.
Untenable accusations by you towards the other residents that they are stealing your money and belongings. These accusations have resulted in Police involvement as well as staff having formal discussions with other residents on each occasion.
Apparent dissatisfaction with the service based on your belief the staff are discriminating against you when in fact staff has made many concessions to assist you.”
The letter gave notice that, if the mother were to remain in the refuge, she was required to make these changes to her behaviour:
“You will not verbally abuse other residents.
Any accusations of stealing against other residents are accurate and reasonable.
Work with staff on an amicable basis to achieve a positive outcome for you and your child.
Rent arrears from the 7^th September 2004 to present must be paid immediately. Weekly rent to be paid of $80.00 each Thursday.”
It seems to me that the mother’s attitude to the father, and his significance in H’s life, constitute a significant deficiency in her capacity to provide for the child’s needs. Dr R assessed that she “has a mindset that this is a father who is no good”. She opined that the mother “wanted to believe the allegations of sexual abuse because it strengthens her mindset”.There are other examples of conduct on the part of the mother which strongly suggest that she does hold this negative view of the father.
One such example was her reaction to H’s first overnight stay with the father after the orders of 10 February 2011. The mother’s counsel emailed to the ICL a two page letter, setting out a litany of complaints, with a request that he “investigate the above breaches and incidents…”(annexure E to the affidavit of the father sworn on 18 March 2011).
It is obvious that these complaints could only come from information elicited from H by the mother or some other person in her camp. The letter strongly suggests that H was questioned about her stay with the father from beginning to end and in considerable detail.
The mother complained, inter alia, that H was given no breakfast; that she was required to eat her dinner sitting alone in front of the television; that she was locked in her room at night and that she was left with the father unsupervised by either the paternal grandmother or Ms B. Dr R commented that the contents of this letter were “a classic example of her believing a child and accepting at face value what a child says. There is just no questioning of things that are just preposterous”.
It is concerning that the mother raised these complaints only 5 weeks before she proposed that H spend unsupervised time with the father and abandoned the allegations of sexual abuse. It seems that her negativity toward the father predisposed her to a belief that H was placed at risk and ill-treated in his care. I am greatly concerned that she will persist with this attitude and behaviour in future.
Another example of this “mindset” of the mother is the allegation which she made to Dr R that H returned from time with the father “with a bag of clothes full of needles and rusted pins and nails”. She told Dr R that there were “about 30 pins and needles threaded through H’s jumper” when she returned from time with her father. Dr R described this allegation as “bizarre”, an assessment which seems entirely reasonable to me.
Another example is the strong opinion about the father to which the mother deposed in her affidavit of 25 May 2010, which was prepared by a lawyer. She swore: “It [is] my opinion that the father has a mental illness, that he is a danger to [H], that he is prone to violence, that he is violent towards me and that he should be assessed by a psychiatrist prior to being able to spend unsupervised time with [H]”. It is most concerning that the mother was prepared to express such hostility and negativity toward the father, yet advance a proposal for unsupervised time only ten months later.
I have real concerns about the mother’s capacity to provide for H’s day-to-day needs because of the frequency of her late arrivals at school. The mother disputed the accuracy of the school records but I can see no reason why the staff would make so many errors about H’s attendance.
On 20 March 2009 the school principal wrote to the mother: “Since 9 February [H] has been late 11 mornings, sometimes being more than 40 minutes late”. On 13 May 2009 the principal again wrote to the mother and stated: “It will be noted in [H’s] report that she has been late to school 20 times since the beginning of the year, usually at least 35 minutes late”.
The school records (exhibit 11) noted 22 late arrivals between 1 February 2010 and 2 April 2010 and 9 between 31 January 2011 and 1 March 2011. The mother conceded that [H] arrived late at school 29 times and left early 17 times in the first half of 2010. She conceded further that she arrived late on a total of 55 occasions during 2010. On any view, this pattern is unacceptable and must be contrary to [H’s] interests.
A map of the Sydney suburb 1 area was tendered (exhibit 6) which showed that the distance between the mother’s home and S Primary School is approximately 1 kilometre. The mother disputed this distance but offered no alternative estimate.
Of course, it should be remembered that the mother gave birth to a child in January 2009 and that she then had a baby aged approximately 11 months. It must have been very difficult for her to manage the household at that time, especially if Mr P was living at his mother’s home. Nonetheless, H’s chronic late arrivals at school should not have been permitted to continue in 2010 and 2011. It should also be remembered that the mother and Mr P claim that they are a happy, well-functioning family unit and yet this lateness persists to the present.
Dr R considered the mother’s lateness “an example of her recalcitrance in that she did not amend herself despite constant feedback…this feeds into the idea of narcissistic traits”. Counsel for the ICL made the valid point that H’s consistent lateness for school must be an embarrassment to her. As noted, however, the mother was in a very difficulty domestic situation in 2009 but she has since had ample opportunity to deal with the problem.
I regard certain of the mother’s conduct while she was an inpatient at Hospital 3 in January 2009 as compelling examples of her “recalcitrance”, as identified by Dr R. The clinical notes for 14 January 2009 stated: “[The mother’s] partner left the ward at 2100 hours and has left [the mother’s] oldest daughter (4 years) in the hospital.” The notes indicate that H slept on a mattress on the floor that night. The mother insisted that H slept in her bed. It seems unlikely that hospital staff would have consented to H sleeping in the mother’s bed, given that she had just undergone an operation. The hospital notes stated that the mother “appears to want to do her own thing”.
In cross-examination the mother conceded that “the hospital was quite cranky” about this situation. She said “[Mr P] left [H] at the hospital when [D] was born because she wanted to be with me. [Mr P] did not want to leave her, he wanted to take her with him, it was [H’s] decision and mine”. It seems to me to be extraordinary that the mother would take it upon herself to impose such a situation on the staff of the hospital.
All of these considerations leave me with serious concerns as to the mother’s capacity to provide for H’s needs. There are concrete examples of incidents when she has failed to do so. The father, although largely untested, at least appears to have good potential to be able to provide for the child’s needs.

The Presumption of Equal Shared Parental Responsibility

The mother and the ICL proposed an order for equal shared parental responsibility. The father sought that he have sole parental responsibility subject to a requirement that he notify the mother in writing of any proposed decision and await her reply, before finalising any issue.
The presumption applies unless the father can establish that there are reasonable grounds for the court to believe that the mother has engaged in abuse of H or family violence or that there is evidence that equal shared parental responsibility would not be in H’s best interests. The ICL submitted that it would be contrary to H’s best interests for the mother “to be completely excluded from major decisions”. The father submitted that it would be impossible for the parents to make decisions jointly.
I am concerned at the prospect that the parties may find it difficult, if not impossible, to reach joint decisions about important issues in H’s life. I am concerned that the mother’s attitude to the father may influence her to reject any suggestion which might come from him.
On the other hand, all of the proposals involve H spending time with each of her parents. They will thus both play a significant role in her life. Accordingly it seems to me that there should be equal shared parental responsibility, so that H knows that she has two committed parents. It may be necessary for the parent with whom she spends the majority of her time to have sole responsibility for decisions about major issues such as education and medical treatment, in default of agreement.
As there will be an order for equal shared parental responsibility, it is necessary that I consider whether H should spend equal time with each of her parents. I will do so, inter alia, by reference to the considerations set out in section 60CC. The fact that neither parent nor the ICL sought an equal time regime does not relieve me of this obligation.

Section 60CC(2)

The proposals put by each parent and the ICL suggest on their face a recognition that H will benefit from an ongoing, meaningful relationship with both her mother and father. Unfortunately, I have doubts that the mother genuinely considers that the father has an important role to play in H’s life.
I have no doubt that H will benefit from a meaningful relationship with each of her parents. The mother has been her primary carer and a very strong influence on her life, although not always beneficially for H.
Dr R sounded a cautionary note about the potential impact on H of her relationship with the mother, if there is a change in primary residence. She firstly observed: “The ICL’s proposal means that there could still be a meaningful relationship with the mother – but different”.
Dr R expressed her concern in oral evidence in these terms:
“If the mother is unable to parent [H] in a reasonable fashion by accepting her back in spite of the fact that she is having fun at dad’s, has moved to dad’s and if she is overcome by grief and distress every time she sees her then she is not in an appropriate parenting space and their relationship will deteriorate.”
The mother’s past self-focus gives rise to much disquiet as to her reaction to a change in primary residence and, obviously, is a factor which warrants careful consideration.
I have referred to the deficiencies which I perceive in the mother’s capacity to provide for H’s needs. I do not elevate these concerns to the level of abuse or neglect of H but it seems to me that there is a clear need to protect her from the chronic conflict between the mother and Mr P.
A similar observation can be made in relation to conflict between the mother and the father, although it seems to me that she is more likely to be the instigator of incidents between them. So much was demonstrated by the unfortunate events on H’s first day at school and the legal consequences which flowed for the mother.

Section 60CC(3)

H is only 7 years old and her views do not carry significant weight, for that reason and also because she has been deprived of the opportunity to develop a close, trusting relationship with her father. Dr R reported:
“She knew there were seven days in a week and was asked ‘how many sleeps’ she would like with each parent during the week. After working out the arithmetic, [H] responded three with her father and four with her mother”.
It thus seems that H wishes to spend time with each of her parents.
Dr R’s observations of H’s interaction with her father gives some basis for confidence that she could develop a very loving, solid relationship with him, Ms B and the paternal family. Dr R reported:
“Initially just seen with her father, [H] began to cry as her mother left and he remained with her in the waiting room. [The father] chatted to her softly and she was noted to begin smiling within five minutes. However, some 15 minutes later, [H] resisted coming to the office and, at my suggestion, her father carried her. She gave a few kicks and remained uncooperative, but did not become significantly distressed.
In the office, [H] sat silently, making no eye contact and ignoring Dad and myself. When they were asked to draw together, in less than five minutes she was chatting and organising Dad to play ‘spot the difference’ in her drawings. He patiently responded and to my enquiry, said [H] calls him Papa or Daddy, ‘whatever she wants’.
When [Ms B] and PGM arrived, [H] was responsive to their greetings. While PGM withdrew to the lounge, [Ms B] joined [H] on the floor, easily engaging her and [H] happily began to show her the dolls house, where they played together. [Ms B] efficiently and calmly attended to [H] blowing her nose. As Dad joined them, [H] appeared animated and comfortable, leaning back against him. She remained engaged in her play with them until she was seen by herself.”
Dr R’s assessment of the nature of H’s relationships with her mother, father, Mr P, Ms B and her half-sisters was set out in detail in her report as follows:
“[H] presented as a compromised six and a half year old. While her cognitive and social development appear to be age-appropriate, [H] showed concerning ambivalence towards her father, an anxiety about being separated from her mother. I have no doubt these difficulties are related: she becomes distant and rejecting of her father in the face of anxiety about him taking her off her mother and when she thinks of his alleged abuse of her, poor treatment of her mother and abandonment of her as a baby (the latter having been told to her by her mother).
Before the assessment, [H’s] anxiety had been primed by months of discussions in her mother’s household about her father’s application. However her initial tears in front of her mother were able to be quickly soothed by her father and a positive, warm connection between [H] and him was evident.

I have referred above to Dr R’s assessment that the mother was “unempathic with [H’s] avoidance of performing”, when she refused to read aloud, and to her opinion that a repetition of this behaviour would expose her to a risk of formation of a “false self”. Dr R was concerned about a “serious long-term consequence to [H’s] identity” of her constructing “a self that is made in the image of what her mother would like to be rather than a positive acceptance of her own nature”.
Dr R’s report continued:
“[H] presented as having important, loving relationships with her stepfather and sisters. She clearly enjoyed her play with [Ms B]. There are many documentations of her attachment to her mother who has been a primary caregiver and most available person in her life.”
Dr R was acutely aware of the likely impact on H of the implementation of her recommendation of a change in primary residence to the father. In her oral evidence she said frankly: “It is an awful proposal that I make”. She then added, however, “I feel comfortable making my proposal”.
Dr R recommended family therapy for the father, Ms B and H in the event that there is a change in primary residence. She spelled out the benefit of such therapy in these terms in her oral evidence: “I would like to see [H], her father and his partner see a family therapist. She would benefit from hearing her Dad say ‘we are here because [H] has to cope with a huge big change’ and she could comment about whether he is getting it right”. I am confident that the father and Ms B would embrace this recommendation. In fact, the father was prepared to consent to an order for this therapy.
The mother’s history of thwarting H’s time with her father gives me little confidence that she will show more willingness or greater ability to facilitate and encourage a close and continuing relationship between them in future. On the other hand, I have no reason to think that the father would act similarly so as to stymie H’s relationship with her mother if she spends the majority of her time with him. Ms B’s unchallenged evidence was that her son M has a continuing relationship with his father, who lives in Europe. Obviously, she appreciates the need for children of separated parents to maintain a relationship with them both.
I have referred in detail above to my concerns as to the capacity of each parent to provide for H’s needs. I have also referred to the mother’s regrettable attitude to the father and her lack of support for his role in H’s life.
The father has doggedly pursued a relationship with H in spite of the mother’s placing substantial obstacles in his way. He has thus demonstrated a strong commitment to her. I would observe, however, that he could have shown greater generosity in terms of her financial support.

Conclusion as to Equal Time

I cannot envisage an equal time arrangement which could operate successfully, given all of these considerations. I fear that the mother would seize every attempt to criticise the father’s care of H and undermine her relationship with him. Dr R said in her oral evidence: “I don’t believe equal time would prevent [H] from being exposed to the situation in the maternal home which I am critical of”. I share her concerns, given the deficiencies in the mother’s parenting capacity and the apparent tensions and instability in her relationship with Mr P.
In a physical and geographical sense it would be reasonably practicable for H to spend equal time with each of her parents but only if the father makes good his plan to move closer to her school. The psychological barriers to such an arrangement would not be alleviated by that move on the part of the father and Ms B. In that sense, too, an equal time arrangement would not be reasonably practicable.
I thus find that it would be contrary to H’s best interests for her to spend equal time with each of her parents. I am then required to consider whether it would be in H’s best interests, and reasonably practicable, for her to spend substantial and significant time with each of her parents.
The legislation contains no temporal definition of “substantial and significant time” but does detail requirements for an arrangement to fulfil this definition. It is necessary for
·“a child to spend with a parent days which fall on weekends and holidays and also other times
·a parent is able to be involved in the child’s daily routine and events which are of particular significance to the child
·a child is able to be involved in events which are of particular significance to a parent
I find myself unable to formulate a regime which would fulfil these requirements for the reasons which led me to conclude that substantial and significant time would not be reasonably practicable nor in H’s best interests. That being so, I am now able to consider what orders are in her best interests.
In my view Dr R accurately and succinctly summarised the competing considerations of primary care with each parent in her report. She wrote:
“With mother –
Pros
·mother is her primary attachment figure
·presence of her supportive stepfather and younger sisters
·familiarity and continuity if remains there
Cons
·mother has significant parenting difficulties, causing significant harm (disruption to relationship with father; ongoing assertions of sexual abuse by father; ongoing domestic discord with aggression), both current and in the future
·the mother and stepfather’s relationship is unstable, with doubts about its viability
·stepfather and mother not sufficiently active in protecting the three young girls from their discord nor seeking help to change
·[H] will have ongoing anxiety about losing her mother and could permanently reject her father (by carrying the misperception he is ‘bad’) to resolve this dilemma and secure an alliance with her mother
With father –
Pros
·less interrupted relationship with him, making for security in knowing she is loved and wanted by him
·opportunity to experience a non abusive father
·opportunity to be cared for by a couple who, to date, are able to problem solve and disagree without high conflict
·same school placement being supported
·opportunity to know her extended paternal family
Cons
·having to adapt to change, which will cause acute distress. This should be manageable for [H], provided she spends regular time in her mother’s household and her fear of absolute loss is negated
·her mother could become highly distressed and less emotionally available
·less time with her sisters and stepfather, significant people to her
Essentially, my reasoning process has led me to identify very similar competing considerations.
I wish to make it absolutely clear that I do not regard the mother’s hearing disability as any impediment to her capacity to care for H. They have obviously developed means of communication over the years. The mother is currently making an attempt to improve her hearing with the use of aids. Hopefully, she will be successful in the near future.
On behalf of the mother reliance was placed on the High Court authority of Gronow & Gronow (1979) 144 CLR 513. It was suggested that this authority refers to “the mother factor” and thus assists her position. I would comment simply that section 60CA of the Family Law Act provides that, in making parenting orders, the best interests of the child are the paramount consideration.

Conclusion

There are adverse consequences for H whatever the outcome of these proceedings. If she moves to the primary care of the father, she will have to make a major emotional adjustment and she will certainly suffer short-term distress. On the other hand, she will live in a secure, happy and well-functioning family unit. She will have the benefit of consistent involvement in her life by the extended paternal family. She will have the great benefit of a strong, loving relationship with a father who is devoted to her. She will be largely free of the conflict and volatility which seems to characterise the mother’s household. She will be protected from the risk of developing a “false self” as identified by Dr R.
Primary residence with the father means that H would no longer live with her half-sisters D and J. In this regard I agree with Dr R’s observation that “sibling relationships are important but a decision has to be made about which parent is best able to meet all of [H’s] developmental needs”.
It seems to me that the mother has been unable to demonstrate that she has the capacity to provide for H’s needs in the period of almost 7 years since the parties’ separation. I have referred in detail above to evidence in this regard, which I will not repeat.
I have concluded that H’s best interests require that she spend the majority of her time in the care of the father. I am persuaded that the proposal of the ICL, for time with the mother, is likely to allow the continuation of a meaningful relationship between her and H and the mother while sheltering the child from the adverse effects of her personality and household.
An issue arose as to the surname by which H should be known, after the father alleged that he saw labels which read “[H Suskain-P]” on her clothing. The father sought an order that she be known as “[Suskain-Materanzi]”; the mother was silent on the issue and the ICL proposed that she continue to be known by her registered name “[Suskain]”.
It is clearly inappropriate that “[P]” appear in H’s surname. The only question is whether “[Materanzi]” should be added to “[Suskain]”. I agree with the ICL’s submission of the practical difficulty for a young child of such a long surname. I am more persuaded, however, that Dr R correctly identified the benefit to H of a name “which accurately reflects her parental heritage”. I will thus accede to the father’s proposal as to H’s surname.
The remaining orders sought by the ICL were not the subject of any contrary submission and appear to me to be uncontroversial. I will thus accede to the balance of the ICL’s proposal, unless I consider any of the proposed orders unnecessary.

I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 14 April 2011.

Associate:

Date: 14 April 2011

[2011] FamCA 337

14 April 2011

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