Mayne & Tomlin & Anor
[2020] FamCA 898
•27 October 2020
FAMILY COURT OF AUSTRALIA
| MAYNE & TOMLIN AND ANOR | [2020] FamCA 898 |
| FAMILY LAW – PARENTING – equal parental responsibility ordered in favour of father and his wife but not in favour of mother – family violence – identity time for mother unless she travels to Victoria. |
| Children, Youth and Families Act 2005 (Vic) s 162 Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 61B, 61C, 61DA, 69ZW |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 Ambler & Ambler [2019] FamCA 870 Atkinson v Atkinson [2019] FamCA 436 Baumgartner v Baumgartner (1987) 164 CLR 137 Blomley v Ryan (1956) 99 CLR 362 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 Coghlan v Cumberland [1898] 1 Ch 704 Cooke v Morton [2018] FamCAFC 9 CSR Ltd v Della Maddalena (2006) 80 ALJR 458 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 Dearman v Dearman (1908) 7 CLR 549 Devries v Australian National Railways Commission (1993) 177 CLR 472 Director-General of the Department of Human Services (NSW) v Tran (2010) 44 Fam LR 1 Doney v The Queen (1990) 171 CLR 207 Dublin Wicklow and Wexford Rly Co v Slattery (1878) 3 App Cas 1155 Dunn v McKernan [2014] FCCA 2907 Elias v Elias [2019] FamCAFC 53 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Fox v Percy (2003) 214 CLR 118 Galea v Galea (1990) 19 NSWLR 263 GH v The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337 (QB) Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269 In the Marriage of Rice & Asplund (1978) 6 Fam LR 570 In the Marriage of Scott (1994) 17 Fam LR 420 Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62 Jones v Hyde (1989) 63 ALJR 349 Kaube v Randall [2018] FamCA 749 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Lee v Lee (2019) 93 ALJR 993 Levinge v Director of Custodial Services (1987) 9 NSWLR 546 Louth v Diprose (1992) 175 CLR 621 Lovell v Lovell (1950) 81 CLR 513 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 McKerrow v Dever [2019] FCCA 1308 McLaughlin v Daily Telegraph Newspaper Co Ltd (No 2) (1904) 1 CLR 243 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Neligan v Lassey [2012] FamCA 257 Owners of SS Hontestroom v Owners of SS Sagaporack; SS Hontestroom v SS Durham Castle [1927] AC 37 Paterson v Paterson (1953) 89 CLR 212 Pell v R [2019] VSCA 186 Pell v R [2020] HCA 12 Percy v Curtis [2019] FamCAFC 189 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 Richter & Richter [2019] FamCA 507 Rosenberg v Percival (2001) 205 CLR 434 Scott v Pauly (1917) 24 CLR 274 South Australia v Johnson (1982) 42 ALR 161 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Taylor v Johnson (1983) 151 CLR 422 The Commonwealth v Introvigne (1982) 150 CLR 258 Voulis v Kozary (1975) 180 CLR 177 Walker v Wilson (1991) 172 CLR 195 Walsh v Law Society of New South Wales (1999) 198 CLR 73 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Warren v Coombes (1979) 142 CLR 531 Wilton v Farnworth (1948) 76 CLR 646 |
| Thomas Bingham, The Judge as Juror: the Judicial Determination of Factual Issues (1985) 38(1) Current Legal Problems 1 J. H. Wigmore, Wigmore on Evidence, vol. IA (Tillers ed, 1983) |
| APPLICANT: | Ms Mayne |
| FIRST RESPONDENT: | Mr Tomlin |
| SECOND RESPONDENT: | Ms Tomlin |
| INDEPENDENT CHILDREN’S LAWYER: | Coulter Roache Lawyers Pty Ltd |
| FILE NUMBER: | MLC | 8744 | of | 2014 |
| DATE DELIVERED: | 27 October 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATES: | 17, 18, 19 & 21 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr A. Lovering |
| SOLICITOR FOR THE APPLICANT: | Clark Family Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms M. Agresta |
| SOLICITOR FOR THE FIRST RESPONDENT: | Lampe Family Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr S. Kuan |
| SOLICITOR FOR THE SECOND RESPONDENT: | Midson & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms S. Damon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Coulter Roache Lawyers Pty Ltd |
Orders
All previous orders are discharged.
The father and the second respondent have equal shared parental responsibility for the child X born … 2020.
X live with the father and second respondent.
X spend time and communicate with the mother as follows –
(a)on four occasions per year, on dates and times that coincide with the Victorian Gazetted School Holidays;
(b) X’s spend time with his mother occur as follows –
(i)in the QQ Town area;
(ii)for a period of no more than six hours at times to be agreed and failing agreement 10am to 4pm;
(iii)with changeover to occur at a venue to be nominated by the father; and
(iv)the mother to give notice of her intention to spend time with X at least one week prior to the proposed time, in writing and in advance of each occasion; and
(c)by telephone once per week on a day and time to be nominated by the father for no longer than 30 minutes.
The parties communicate by email or text message in relation to the X, in a child focused manner.
The mother is permitted to send X letters, cards and gifts and the second respondent inspect the letters, cards and gifts to pass these onto X should they be child focused.
The parties are hereby restrained by injunction from –
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent to or in the presence or hearing of X and from allowing any other person to do so; and
(b)discussing these proceedings, or other proceedings in which the parties are involved, or the contents of any court related documents filed in these proceedings, with or in the presence or hearing of X and from allowing any other person to do so.
The father keep the mother informed of –
(a)any significant injuries or illness that X suffers whilst in their care, as soon as practicable, following such injury or illness;
(b)any instances where X needs urgent medical attention during their time with X, immediately if possible, or otherwise as soon as practicable thereafter;
(c)any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in cases of emergency (with the party in whose care X is in to inform the other party immediately);
(d)any general medical or health issues relating to X, including but not limited to particulars of any medication prescribed to X and name and contact details of the prescribing health practitioner; and
(e) his residential address, contact number and email address.
The mother is at liberty to liaise with X’s treating health practitioners –
(a) at the discretion of the treating practitioner; and
(b)with the mother to ensure she engages in a courteous and respectful manner with such professionals.
The mother keep the father informed of her residential address, contact number and email address.
The father and second respondent provide a copy of these orders to X’s treating medical and allied health practitioners and X’s school.
Pursuant to section 64B(2)(g)(ii) of the Family Law Act 1975 (Cth) the mother is restrained from making further application under Part VII of the Act in relation to X without first making an ex-parte application seeking and obtaining leave of a Judge of the Family Court of Australia and for that purpose –
(a)the mother file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking those orders;
(b)the mother file an affidavit of her treating mental health practitioner confirming her engagement in mental health services;
(c)the mother file an affidavit confirming W is being treated by allied health professionals;
(d)the mother provide confirmation that she has stable accommodation for her and her other children;
(e)unless otherwise ordered such application is not to be served on the other parties or any other person; and
(f)if possible, any such application for leave is listed before the Honourable Justice Wilson.
The independent children’s lawyer is discharged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mayne & Tomlin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8744 of 2014
| Ms Mayne |
Applicant
And
| Mr Tomlin |
First Respondent
And
| Ms Tomlin |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
This proceeding concerned X, a 10 year old boy, the son of the applicant and first respondent. The second respondent is the first respondent’s wife.
X presently lives with the respondents in the State of Victoria.
The applicant lives in G Town, New South Wales with her new partner, her son W aged seven and twin daughters aged three.
The applicant has a collection of disabilities, as does the father.
The mother harbours an array of grievances about the family law system and told me of them in her evidence for me. She described the family law system as corrupt.
In April of this year the mother took her children other than X to G Town where she now lives. The mother gave evidence that she intends to have a child her new partner (making that her fifth child) and is exploring IVF options.
Since April of this year the mother has had no contact whatsoever with X.
The mother seeks orders in this proceeding for equal shared parental responsibility for X. She also seeks orders governing her time with X. She gave evidence that under no circumstances will she return to Victoria.
The father as the first respondent, the father’s wife as the second respondent and the independent children’s lawyer opposed the mother’s applications for equal shared parental responsibility and for her time in person with X in New South Wales. In essence, those parties contended that the mother poses a risk of physical or psychological harm to X. They have argued that the provisions of s 60CC(1) and (2) operate ahead of the considerations of s 60CC(3).
Against that brief overview of the contentions advanced by all parties, I have determined the issues of parental responsibility and time.
Synopsis
For the reasons that follow, in my judgment the mother’s application must fail. Her application for her to have an order for equal shared parental responsibility of X with the father must be dismissed. Her application for time with X, formulated in the way she has formulated it, must also fail. In my view, the first and second respondents should have equal shared parental responsibility for X. The mother’s time with X should be in accordance with the proposal put forward by the independent children’s lawyer.
History of this litigation
This proceeding had a lamentable history. It was commenced in 2014. Over the ensuing six years this proceeding was heard on an array of separate occasions in the Federal Circuit Court of Australia prior to the transfer of the proceeding to this court. Those occasions were as follows –
a)1 December 2014 before Judge Curtain;
b)24 February 2015 before Judge Curtain;
c)11 May 2015 before Judge Curtain;
d)9 July 2015 before Judge Curtain;
e)27 November 2015 before Judge Curtain;
f)12 December 2016 before Judge Curtain;
g)24 February 2017 before Judge Curtain;
h)17 July 2017 before Judge Curtain;
i)5 March 2018 before Chief Justice Alstergren;
j)22 March 2018 before Judge Curtain;
k)2 May 2018 before Registrar Sudholz;
l)4 July 2018 before Registrar Jenkins;
m)6 September 2019 before me;
n)7 January 2020 before me;
o)28 January 2020 before me;
p)6 February 2020 before me;
q)18 February 2020 before me;
r)21 April 2020 before me;
s)31 July 2020 before me;
t)11 August 2020 before me; and
u)the trial on 17, 18, 19 and 21 August 2020.
Some details about the key people
Several key people are relevant to this case. They include, in no special order, the mother, the father, the second respondent, X and X’s siblings. It is necessary to say a little about each.
The mother
The mother is currently 28 years of age.
The mother’s children include X, W (aged seven), Z (aged three) and Y (aged three). Y and Z are twin girls. The father of W, Y and Z is a man by the name of Mr H. Pursuant to orders made by his Honour Judge McNab in the Federal Circuit Court of Australia, the mother has sole parental responsibility for W, Y and Z.
The mother gave evidence about her very strong identification with her children’s indigenous heritage.
In her evidence the mother stated on many occasion that she was affected by borderline personality disorder, anxiety and suspected post-traumatic stress disorder.
The father
The father is 33 years of age. He said in evidence he is unemployed. In his affidavit made 10 August 2020 the father stated that he has an intellectual learning disability.
The second respondent – Ms Tomlin
The father is married to the second respondent.
The second respondent filed a lengthy affidavit in this proceeding made 10 August 2020.
X
X currently lives with the father and Ms Tomlin. Since April of this year X has not seen his mother. X is a primary school student in grade fourth. According to Dr K, a consultant paediatrician who provided extensive reports that were put in evidence, X’s medication involves –
a)30mg of long acting Ritalin once daily;
b)½ x 10mg of IR Ritalin; and
c)240mg wafers of Minirin for incontinence; and
d)OsmoLax for constipation.
The father stated in his affidavit that X suffers with emotional regulation, that X struggles from sensory overload and that he is sensitive to noises. The father stated that X becomes irritated by the sensation of X’s clothing upon X’s skin, that X requires his clothing to match and the X’s clothing must be loose-fitting.
X has been diagnosed with autism spectrum disorder, attention deficit and hyperactivity disorder, anxiety generally and bed-wetting.
X is in the care of a speech therapist and an occupational therapist as well as a psychologist for emotional regulation.
The father has stated that X has a colour vision deficiency rendering X unable to differentiate between certain colours especially blue and purple.
The father and Ms Tomlin have been X’s full-time carers since October 2012.
X has been diagnosed with a medical syndrome.
Ms Tomlin gave evidence in her affidavit made 10 August 2020 about her relationship with X. Her evidence on point was detailed and precise. I have addressed it in depth in the passages below.
W, Y and Z
Some, although not a great deal of evidence, was directed to the relationship between X and W, X and Y and X and Z. So far as the relationship between X and W was concerned, the mother and Ms Tomlin gave evidence that the relationship between X and W was difficult, as each called it, punctuated by violent behaviour between the two. Ms Tomlin, who has been X’s primary carer since 2012, said X and W did behave harmoniously on occasions. However, she said that when the two boys argued the situation was most difficult.
It was not contentious that X had a good rapport with Y and Z.
The mother’s new partner did not give evidence in this case. That was peculiar because on the mother’s case, X was to travel to G Town where he would spend time with the mother and persons living with the mother, including the mother’s new partner. I was unable to adequately assess the mother’s proposal without having heard from the mother’s new partner and knowing in detail the feasibility and practicability of the mother’s proposal insofar as the mother’s new partner was involved in implementing the mother’s proposal.
The events of April 2020
As has been already mentioned, the mother met her current partner early in the year 2020. They decided to meet face-to-face in G Town in or around Easter. The evidence of the mother’s decision to move to G Town was recorded in her trial affidavit, in only fleeting terms. She said the following which I have recorded verbatim –
·I have been in a relationship with Ms J for the past 8 months.
·Ms J does not have children from previous relationships.
·some 4 months Ms J, the children and I commenced cohabitation.
·Ms J works full time for ZZ Retail while I stay at home and engage in home duties.
·the children have a warm and loving relationship with Ms J.
·X has not met Ms J.
The mother’s partner Ms J lives in G Town with the mother, W and the twin girls Y and Z. The five live in a two bedroom rented home with all three children in one room. The mother gave evidence that she (the mother) is very happy in her current environment. She said that when she lived in Victoria her circumstances were particularly unhappy for her. She said several times she did not feel safe when living in Victoria. She said that since moving to G Town the mother has not had any contact with X. The mother levelled a collection of assertions against the second respondent to the effect that the second respondent had actively undermined the mother’s relationship with X. Ms Tomlin denied those allegations. Details of them are set out below.
The mother’s evidence
The mother was cross-examined extensively. With leave, Mr Lovering asked her limited questions in chief to which she gave responses that may be relevantly distilled as follows –
a)the mother has no intention of returning to Victoria because, so she said, “there’s too much pain and hurt in Victoria”;
b)she said it was not feasible to return to Victoria because she was not “ripping” (her word) her children out of yet another environment when W was settled in school and the twins were settled in day care; and
c)she said her children were not safe in QQ Town.
On behalf of the father, Ms Agresta pursued questions in cross-examination with the mother. The following were the more important responses the mother gave in her cross-examination by Ms Agresta –
a)the only family member with whom the mother communicates is her father who lives in Perth;
b)she said she had not spoken to her mother or sister for four years because “they’re not my family” and “never will be”;
c)the mother fell out with her own mother because the mother’s mother fakes cancer and is a narcissist;
d)the mother fell out with her sister because the sister is also a narcissist;
e)both the mother’s sister and the mother’s mother wished “rape on my twin girls” (the mother’s words) and “they used to say very racist things to my very proud indigenous children” (the mother’s words again) so “for the sake of my children and my mental health, I cut them off”;
f)the mother met her new partner Ms J on Facebook a few years ago as Facebook friends and they have been in a relationship for around eight months;
g)Ms J works at ZZ Retail;
h)the mother’s plan is to live permanently in New South Wales;
i)the mother visited Ms J for the first time in New South Wales in April 2020 when on school holidays;
j)while in New South Wales the mother learned that the court had suspended her time with X and the mother decided to stay in New South Wales thereby ending her Department of Housing accommodation in Suburb L;
k)as to her life in New South Wales, the mother said the following –
Ms Mayne: It’s pretty amazing up here. I’m enrolled to do my course. Now that I’ve got the support of my partner, I can go find a job. The school here is absolutely amazing for W, the child care is absolutely amazing for my girls. We live basically a 10 second walk from the beach.
MS AGRESTA: That’s great, okay….?
Ms Mayne: Get out on the jet ski, go whale watching. It’s my dream. I’m finally living my dream.
MS AGRESTA: Okay. Would you….?
Ms Mayne: And I’m not stuck in a dead end place.
l)the mother disagreed that she and her new partner did not have a history of living together;
m)the mother said she and her new partner were looking at starting IVF very soon to have another baby;
n)the mother said she had made enquiries with M Clinic, a fertility service about anonymous sperm donation;
o)the mother disagreed that her parenting of her existing four children had been very complicated over the years;
p)when asked whether she took the view that it was pretty easy to uproot her life and go to another state the mother said “it was what was right for me and my children in my care”;
q)she said of her life in New South Wales “I haven’t been happier – like, I’m allowed to be happy. I don’t have to sit there being sad and living a crappy life just to suit everyone else”;
r)she said “I’m also my own person. I am allowed to chase my dreams”;
s)she agreed her children have some very rare and complex medical issues; and
t)her solicitors failed to include in the mother’s trial affidavit the mother’s links and connections the mother made for her children consequent upon her move.
Ms Mayne’s behaviour while answering questions in cross-examination was unchecked. Ms Mayne moved inside and outside her house. At one stage she left her home altogether and went walking, allegedly to meet W from a bus stop. She paid no regard whatever to the solemnity of the occasion of giving evidence (even recognising an electronic trial) while answering questions while under cross-examination. The following exchange emerged –
HIS HONOUR: Well just a moment. Are we in the same situation where we have two persons in the one place at the one time? We need to hear your evidence….?
Ms Mayne: I’m in a different room.
HIS HONOUR: unpolluted by barrackers and commentators, Ms Mayne. This is a very serious issue, and I….?
Ms Mayne: I am in a separate room. I’m in the bedroom.
HIS HONOUR: All right. Thank you.
Ms Agresta resumed her cross-examination of the mother. The following matters emerged from the answers the mother gave to questions put by Ms Agresta –
a)the mother asserted that Ms Agresta was stalking the mother on Facebook;
b)she denied she was banned from W’s school and she refused to explain the true factual position surrounding that school’s banning of her; and
c)the mother accused Ms Agresta of badgering her and the mother refused to make any comment in response to a particular question because, so the mother said, Ms Agresta was frustrating her.
It was apparent that the mother was not coping well when cross-examined. It seemed to me that the mother might have been assisted by a short break. That exchange was as follows –
HIS HONOUR: Ms …, would you – I beg your pardon – Ms Mayne, would you prefer a short break to compose yourself?‑‑‑
Ms Mayne: No, because I’ve only got 34 per cent on my iPad so I need to get this over and done with.
HIS HONOUR: Well it might take longer than 30 per cent on your iPad, Ms Mayne, and quite frankly ‑ ‑ ‑?‑‑‑
Ms Mayne: No, I don’t want any break. Just because I answer question – stop going me and going me and going me like a narcissistic.
HIS HONOUR: Counsel is entitled to ask the questions that she is and this is your case – we are doing the best we can to get to the bottom of it ‑ ‑ ‑?
Ms Mayne: I really don’t care.
The mother behaved slightly better thereafter so the cross-examination resumed. When pressed about the name of W’s full time integration aid the mother refused to give details of it saying a danger existed that the father and Ms Tomlin would “go and give information to everyone” (her words). The mother then added the following –
MS AGRESTA: Well you keep saying that and you’ve said that about a whole other thing ‑ ‑ ‑?‑‑‑
Ms Mayne: He has got a fulltime aid, that’s all you need to know.
MS AGRESTA: Yes. Okay. So, you’re not going to tell us what his name is or her name is – is that right?‑‑‑
Ms Mayne: No, because honestly, my child is nothing to do with you.
Even recognising that the mother had her own special issues, she was less than frank and open in her evidence. When she detected that a question somehow trespassed into an area which she was unwilling to discuss, the mother provided a non-responsive answer.
Ms Agresta’s cross-examination continued. The mother said the following –
a)W having attended R School, S School, Q School and P School, the mother agreed she took W to a school in New South Wales;
b)she said the decision to move W’s school was made with the approval of the relevant child protection worker;
c)the mother posted on Instagram a note that read “thanks child protection for wrecking my life”; and
d)the mother admitted receiving help from PPP Services, QQQ Health, RRR Organisation and CAMHS.
After returning from outside, the mother did not remain in one spot when giving her evidence. That prompted the following exchange –
MS AGRESTA: Why are you moving around? Can you sit down?‑‑‑
Ms Mayne: I’m plugging my iPad in because I’m on 15 per cent.
MS AGRESTA: Okay. Right ‑ ‑ ‑?‑‑‑
Ms Mayne: Unless you want me to just let it disconnect.
MS AGRESTA: That’s just silly. Ms Mayne, how did consideration of X come into – come into your move to go up there? How did that ‑ ‑ ‑?‑‑‑
Ms Mayne: My access had all been suspended.
MS AGRESTA: Okay. So, you ‑ ‑ ‑?‑‑‑
Ms Mayne: My access had all been suspended and I knew that I stood no chance of ever seeing him again, so I just accepted that.
MS AGRESTA: Okay. But that’s not the case because you’re saying to his Honour that you want him to come up there now, don’t you?‑‑‑
Ms Mayne: Yes, I would love him to come up.
MS AGRESTA: All right ‑ ‑ ‑?‑‑‑
Ms Mayne: But with all slander and that, I don’t know how far I’m going to get.
MS AGRESTA: Okay. So, you don’t really believe that it will happen. Is that the case?‑‑‑
Ms Mayne: All – you are all against me. You all hate my guts and you all think I’m a crappy parent.
MS AGRESTA: Do you think you’re a good parent?‑‑‑
Ms Mayne: Hell, yes.
MS AGRESTA: Okay. So, can I suggest this to you ‑ ‑ ‑?‑‑‑
Ms Mayne: I do a bloody good job for someone who grew up with no parent figure whatsoever in a residential care home being raped daily.
It was readily apparent that the mother held a particularly favourable view of her parenting of X specifically. In final addresses, that led Ms Agresta to submit that the mother had no real insight into her parenting of X. There was considerable merit in that submission. That led me to warn the mother in the following terms –
HIS HONOUR: Ms Mayne, would you please conduct a more measured approach in this case. You have been shouting, you’ve been engaging – your pitch of your voice has been very high. You’re being quite rude ‑ ‑ ‑?‑‑‑
Ms Mayne: I’ve got autism and I’m also half deaf and I’ve got auditory processing disorder. I can’t hear the tone of my voice in my head.
HIS HONOUR: Well I would be grateful if you could try to become a bit more calm because it’s ‑ ‑ ‑?‑‑‑
Ms Mayne: I will try but I am being absolutely slandered.
HIS HONOUR: I would be grateful if you would try. Okay, keep going Ms Agresta.
That did not cause the mother to change her approach. She was asked about who the mother was seeing for her mental health issues. That seemingly simple line of questions provoked an unbalanced response from the mother. It was as follows –
MS AGRESTA: Well you haven’t. Okay. Who was your – who were you seeing in Melbourne before you went up there? Who were you seeing in terms of mental health counselling ‑ ‑ ‑?‑‑‑
Ms Mayne: XX Health Services.
MS AGRESTA: Okay. When did you start doing that?‑‑‑
Ms Mayne:..... it would have been around January or something.
MS AGRESTA: And that’s because of what – that’s because of your emerging sexuality – that you were seeing that. Is that right?‑‑‑
Ms Mayne: No.
MS AGRESTA: No. Well, why?‑‑‑
Ms Mayne: I’ve always been lesbian. Always been lesbian, dude. Don’t start with the homophobic comments because I won’t stand for that.
Ms Agresta’s question was perfectly proper. It did not warrant that response from the mother.
Yet the mother was articulate when she wanted to be. She had no trouble at all reciting her daughter Y’s medical issues. She said the following –
MS AGRESTA: Tell us about your children – your other children – they had a lot of complex needs too and, in the past, I’ve read ‑ ‑ ‑?‑‑‑
Ms Mayne: Y doesn’t.
MS AGRESTA: Doesn’t anymore?‑‑‑
Ms Mayne: Y does not have complex needs. Z does and she’s linked in with the D Hospital and C Hospital up here. She has a genetic condition that causes tumours among the nervous systems. She has developmental delays, she has epilepsy. She has sleep apnoea; she has a condition which there is no medical literature on, and she has another syndrome which is the same as what I carry.
MS AGRESTA: That sounds like a lot of complex issues?‑‑‑
Ms Mayne: She has regular speech therapy. She has regular occupational therapy. She has regular consults with her neurologists.
The mother gave evidence that the father and Ms Tomlin coached X to dislike the mother. The mother was particularly vitriolic towards Ms Tomlin. The following was an illustration –
MS AGRESTA: How do they do? How do you think they do raising your son?‑‑‑
Ms Mayne: I can’t comment it because they don’t communicate with me.
MS AGRESTA: Well I’m asking you, okay. You’ve read the material – you’ve read – there have been three family reports prepared in this case and ‑ ‑ ‑?‑‑‑
Ms Mayne: I believe that Ms Tomlin likes to lie a lot and slander me 24/7.
MS AGRESTA: Okay. Right?‑‑‑
Ms Mayne: I do believe Ms Tomlin has narcissistic tendencies. I don’t oppose to X living in the house providing there’s adequate support.
MS AGRESTA: Everybody seems to have narcissistic tendencies in your life. Yes, okay. All right. So, is the short answer to that that you think they don’t do a very good job?‑‑‑
Ms Mayne: Don’t know.
MS AGRESTA: Can you just finish – I’m going to finish – okay, the proposition. I’m putting it to you that they do a very, very good job getting all of his needs met. What do you say?
Ms Mayne: No, because they’re refusing to meet the need of him having a meaningful relationship with his siblings and his mother.
MS AGRESTA: Right. Okay. And just ?
Ms Mayne: Plus, I’ve also witnessed them screaming at him – demanding to know what goes on in my house and coaching him to hate me.
The mother said she had no issue with X living with the father and Ms Tomlin so long as there was adequate support to allow X’s needs to be met.
On another occasion during Ms Agresta’s cross-examination, the mother announced that the battery strength of her iPad was low. Ms Agresta put to the mother that her approach to having a functional device to permit her to give evidence was very disorganised. Several hours into her evidence the mother downloaded the relevant application. The mother responded to Ms Agresta’s question about the mother’s disorganisation by requesting Ms Agresta to stop making false allegations and slandering the mother. There was nothing false in Ms Agresta’s point nor was it slanderous. The mother’s response was inappropriate. That elicited the following –
HIS HONOUR: Do you think it would be helpful if we have a break to enable tempers to calm down and resume in a few moments while the Teams?‑‑‑
Ms Mayne: Yes, I need to go clear my thoughts because this person has actually made me feel really low self esteem and worthless and I also need to go to the toilet.
HIS HONOUR: That may not change, but you need a toilet break, do you?‑‑‑
Ms Mayne: Yes, I’ve had four kids. I’ve got a very weak bladder.
HIS HONOUR: The simple question is if you want a toilet break, you will get one. All you have to do is ask?‑‑‑
Ms Mayne: I was just trying to hold off because every time I ask to do something, I get accused of being this and that and ---
The mother said she did not consider that the father and Ms Tomlin were doing a good job raising X nor did she consider they were looking after his needs. The mother said she believed X was being abused in their care. There was no evidence whatsoever in this case to support any of those assertions by the mother.
The mother said she considered that the father and Ms Tomlin were abusing X emotionally as they were alienating X from the mother. Ms Tomlin denied any such suggestion. I prefer the evidence of Ms Tomlin on point.
The mother revealed that she was in the process of suing the family consultant, Ms N for defamation. The mother volunteered additional information about the issue. It was as follows –
MS AGRESTA: Okay. You’ve got let me finish the question?‑‑‑
Ms Mayne: I think ..... and telling my indigenous children that they should be lucky that the white people came.
HIS HONOUR: I’m sorry.
MS AGRESTA: Okay. Well ‑ ‑ ‑?‑‑‑
Ms Mayne: You don’t just tell my indigenous children ..... nothing but pain to our indigenous communities and still continue to cause pain. You do not make my Aboriginal children sit down and watch about black ..... that’s disgusting.
MS AGRESTA: You know, Ms Mayne, really, what contact are your Aboriginal children having with their Aboriginal father at the moment?‑‑‑
Ms Mayne: Me and my partner have actually offered to pay for him to come up. Prior to me leaving Victoria, the dad actually never contacted me. They are in regular contact with their aunties and uncles. They are regularly – quite often go up to the indigenous ..... in AAA Town. No, not AAA Town ..... BBB Town. And they ..... rallies. We attend black lives matter rallies. My son will tell you straight, always was, always will be Aboriginal and no pride in genocide. He’s a proud CCC People boy. We talk Aboriginal language at home.
The mother asserted that Ms Tomlin had made attempts to have the mother bashed.
Possibly unintentionally, Ms Agresta’s questioning exposed the mother’s attitude to the family law system. It arose as follows –
MS AGRESTA: Well – and you see the impression his Honour would be left with when he listens to you this morning is that you’re an extremely, extremely busy person. I mean, you’re trying to study, you’ve got three children .....?‑‑‑
Ms Mayne: Wait. Just wait.
MS AGRESTA: Okay. That you’re very proactive in terms of protecting the relationship of your children with their Aboriginal father. That you’re seeking to work. That you’re seeking to study. That you’re involved with Aboriginal cultural things up there for your children. That you’re involved with D Hospital and DDD Clinic and W’s school. But, you see, that all sounds really good but none of it, really, is – there’s no evidence that you put forward so that his Honour could be satisfied that all of these things are true and that they’re happening. I suggest to you?‑‑‑
Ms Mayne: You can slander me all you like, darling, but at least I’m bettering my kids’ lives and not giving them cycle of Centrelink. At least I’m aiming not to be like my mother. At least I’m aiming to keep my children out of a system that trafficks children, hashtag save our children.
MS AGRESTA: Right. And which system?‑‑‑
Ms Mayne: At least I’m ..... to better my life. At least I’m doing ‑ ‑ ‑
MS AGRESTA: Which system trafficks children, Ms Mayne? Which system?‑‑‑
Ms Mayne: Child protection, darling.
MS AGRESTA: .....?‑‑‑
Ms Mayne:..... court system, child protection. I’m not even going to get into that.
MS AGRESTA: So the Family Law Court system ‑ ‑ ‑?‑‑‑
Ms Mayne: You can research .....
MS AGRESTA: ‑ ‑ ‑ and child protection trafficks children. Is that seriously what you’re saying to this Court?‑‑‑
Ms Mayne:..... what happened to Luke Batty?
MS AGRESTA: Right. Yes .....?‑‑‑
Ms Mayne: Yes. I have no faith in the Family Law Court system. It has blood on its hands.
MS AGRESTA: Right. Okay?‑‑‑
Ms Mayne: At the end of the day, I’m not the favourite person so I’m not going to win in any of this.
MS AGRESTA: Right. So if you’re not going to win in any of this, why are we here?‑‑‑
Ms Mayne: ‘Cause I don’t give up that easily ..... this through Court as long as I can. I will be appealing the final decision today.
MS AGRESTA: Well, this is what I ‑ ‑ ‑?‑‑‑
Ms Mayne: If it doesn’t go in my favour.
Ms Agresta put to the mother that her responses outlined immediately above had nothing to do with X’s best interests. The following emerged –
MS AGRESTA: Ms Mayne?‑‑‑
Ms Mayne: My siblings, whose ancestors were stolen generation, deserve to know their brother.
MS AGRESTA: Ms Mayne, I’m suggesting to you that this has nothing to do with X and what’s best for X. This is really to do with the fact that you just really want to have a fight?‑‑‑
Ms Mayne: No.
MS AGRESTA: That you – okay?‑‑‑
Ms Mayne: And I suggest you’re lying and trying to slander me and – yeah.
MS AGRESTA: Okay. All right. Well, I’m not because I’m really just quoting what you’ve just said to his Honour that you ‑ ‑ ‑?‑‑‑
Ms Mayne: No, you’re not.
MS AGRESTA: ‑ ‑ ‑ will just keep going ‑ ‑ ‑?‑‑‑
Ms Mayne: You’re twisting things.
MS AGRESTA: ‑ ‑ ‑ that you think this system is corrupt and that you are going to fight the system and you’re going to keep going and keep going, basically, because you like a fight?‑‑‑
Ms Mayne:.....a meaningful relationship.
MS AGRESTA: Right. Okay?‑‑‑
Ms Mayne: And parental alienation is child abuse.
MS AGRESTA: All right. Your son deserves, does he not, to have a stable and secure childhood where he’s in a household where he is ‑ ‑ ‑?
Ms Mayne: .....
MS AGRESTA: ‑ ‑ ‑ loved and ‑ ‑ ‑?‑‑‑
Ms Mayne: I am 50 per cent of his identity. His siblings ‑ ‑ ‑
MS AGRESTA: Okay.?‑‑‑
Ms Mayne:‑ ‑ ‑ deserve to know him. Stop perpetrating the stolen generations.
MS AGRESTA: Okay. What’s X got to do with the stolen generation, Ms Mayne?‑‑‑
Ms Mayne:..... he is the sibling of proud CCC People children?
MS AGRESTA: Right?‑‑‑
Ms Mayne: My partner’s also Aboriginal so technically this is an indigenous household.
MS AGRESTA: Righto. Okay. Well, you know, technically, you could have stayed in Melbourne and you could have been much better placed to be meaningfully involved with your son’s life?‑‑‑
Ms Mayne: Okay. I couldn’t stay in Melbourne because it was also not safe for me to reside in Melbourne.
MS AGRESTA: So tell us why it wasn’t safe for you to reside in Melbourne, then?‑‑‑
Ms Mayne: Because of Mr Tomlin and Ms Tomlin. Because of the people in QQ Town. And, to be honest, I’m allowed to move to better mine and my children’s lives. I have better opportunities up here. I’m sorry that you don’t appreciate that a mum is trying to get a decent career.
The mother said W has not been a biter for about two and a half years. The mother was asked about an incident when broken glass was on the ground and her children were walking barefooted. She said the following –
MS AGRESTA: So any broken windows in ‑ ‑ ‑?‑‑‑
Ms Mayne: There was a broken bottle – no. There was a broken bottle, from the previous tenants, that had been buried, and yes it was picked it up, and yes my kids go out in the backyard barefoot. Bare feet is actually really good for autistic children as it helps ground them.
MS AGRESTA: Not if there’s glass on the floor?‑‑‑
Ms Mayne: And also, there – I had already picked it up.
MS AGRESTA: .....?‑‑‑
Ms Mayne: And also, as a spiritual FFF religion follower, I believe in spiritual grounding.
MS AGRESTA: Okay, right. You’re a FFF religion follower, yes?‑‑‑
Ms Mayne: Yes.
I took her reference to a wiccan to mean a form of modern religion.
Ms Agresta took the mother to aspects of Ms N’s report where X told Ms N that W punched, kicked and bit X yet the mother blamed X. In response the mother said X and W were as bad as each other.
As is customary when a female witness is cross-examined, the cross-examiner frequently substitutes the witness’s name for the common noun “madam”. Ms Agresta did that. The mother’s response was as follows –
MS AGRESTA: Well, sorry, madam, but this is ‑ ‑ ‑?‑‑‑
Ms Mayne: Via family support. Please stop calling me that, I find it highly offensive.
Ms Agresta pressed the mother about the mother’s contention that X had been sexually abused while in the care of the father. The mother provided a “no comment” response to many of Ms Agresta’s questions. The mother also gave what I regarded as very peculiar answers about not feeling safe, about her intention to appeal any decision I make unless orders are made for X to go to New South Wales and about her stated intention to not return to Victoria. The exchange was as follows –
MS AGRESTA: All right, you keep going back to this. Is it part of your case, Ms Mayne, that X is or has been sexually abused in the care of ‑ ‑ ‑?‑‑‑
Ms Mayne: Yes.
MS AGRESTA: ‑ ‑ ‑ my client?‑‑‑
Ms Mayne: Yes.
MS AGRESTA: Yes. You make that – you really, seriously, make that allegation, do you?‑‑‑
Ms Mayne: Yes, I do. It was even in Child Protection reports, thank you very much. Plus ..... ‑ ‑ ‑
MS AGRESTA: It was in Child Protection reports because you made that allegation?‑‑‑ ‑ ‑ ‑
Ms Mayne: and it was substantiated.
MS AGRESTA: And your – and you have a gripe against this court, don’t you, and Child Protection, and the ICL, because nobody takes that allegation seriously and investigates it, don’t you?‑‑‑
Ms Mayne: No comment.
MS AGRESTA: No, it is – you’re not allowed to “No comment” ‑ ‑ ‑?‑‑‑
Ms Mayne: No comment.
MS AGRESTA: ‑ ‑ ‑ this is a – I’m asking you a question, and ‑ ‑ ‑?‑‑‑
Ms Mayne: I don’t – I don’t ‑ ‑ ‑
MS AGRESTA: ‑ ‑ ‑ if his Honour doesn’t think it’s relevant, he will ‑ ‑ ‑?‑‑‑
Ms Mayne: I don’t feel safe answering it. Don’t feel safe answering it, sorry.
MS AGRESTA: What – how are you not safe answering a question that you have given – you have just given us this information. I mean, I don’t quite understand how you’re not feel safe ..... ‑ ‑ ‑?‑‑‑
Ms Mayne:..... court have blood on their hands. They pick favourites, and I’m not the favourite, so I’m just going to get completely assassinated until the point that my mental health breaks, and that’s what you want; you want me to break. So now I have gone into a disassociation mode. I will answer your questions, but I’m not going to take anything personal anymore, because ultimately your end game is to destroy me.
MS AGRESTA: No, it’s not?‑‑‑
Ms Mayne: It is.
MS AGRESTA: I can assure you that it’s not?‑‑‑
Ms Mayne: Sorry, I have already been warned by multiple people.
MS AGRESTA: Sure. Ms Mayne, if the court doesn’t make ‑ ‑ ‑?‑‑‑
Ms Mayne:.....
MS AGRESTA: ‑ ‑ ‑ the orders that you want for X to come to New South Wales to spend time ‑ ‑ ‑?‑‑‑
Ms Mayne: I will appeal it. I will appeal it to a higher court.
MS AGRESTA: Okay?‑‑‑
Ms Mayne: Already got the case work.
MS AGRESTA: Okay, that’s good, but I’m asking you this; will you come to Victoria to spend time ‑ ‑ ‑?‑‑‑
Ms Mayne: No.
MS AGRESTA: ‑ ‑ ‑ with X?‑‑‑
Ms Mayne: No ..... I’m not coming back to Victoria. I have got a life here.
On behalf of Ms Tomlin, Mr Kuan questioned the mother about the circumstances of the mother’s departure from Victoria. The questions were put in a benevolent manner. The Mother’s responses revealed to me her spontaneity of decision making. That indicated she was given to impulsivity and ill-considered actions. Her evidence was as follows –
MR KUAN: You did. So when you made the journey the next day your intentions were to just go to New South Wales for holidays?‑‑‑
Ms Mayne: Yes.
MR KUAN: You were just there to meet your current partner for the first time?‑‑‑
Ms Mayne: Yes.
MR KUAN: When did you decide to stay?‑‑‑
Ms Mayne: The day after I was told I would never see X again, because at that stage I felt I had nothing left for me in Victoria. Absolutely fucking nothing.
MR KUAN: So you were up in New South Wales when you got told that you would not be able to see – okay?‑‑‑
Ms Mayne: I can remember the day very vividly. Me and my partner were driving to the beach and I got the call that apparently there was a court case that I had no idea about, and that I was not allowed to contact X whatsoever, ever again. I had a complete and utter mental breakdown. Now, this is going to fuck everything up, but I ended up in a psych ward due to the mental breakdown.
MR KUAN: It must be explained to you that the contact regime was just suspended?‑‑‑
Ms Mayne: No, I have been told by every lawyer there’s no chance I’m ever seeing X again. So I completely disassociated from my Victorian life.
MR KUAN: His Honour just made an order that that contact regime be suspended; it doesn’t mean that you won’t be seeing X ever again. Was that explained to you ‑ ‑ ‑?‑‑‑
Ms Mayne: I have been told by a lot of lawyers that I have got absolutely no chance.
MR KUAN: Okay, now how many days after you arrived in G Town did you decide to stay – did you decide to live there permanently?‑‑‑
Ms Mayne: Five days later.
She said she paid the airfare from the government coronavirus supplement for which she received $750.
The mother was challenged about her intention to return to Victoria. She said the following –
MR KUAN: Well, if you – if you make a journey to Melbourne, say, during school holidays, you can spend some day time with X, don’t you think?‑‑‑
Ms Mayne: No. No, I don’t feel I’m safe in Victoria to be there for extended periods of time. They want me to go down to QQ Town. I ain’t going to QQ Town. I haven’t set foot in QQ Town for years for a reason.
MR KUAN: Okay, so you don’t feel safe in QQ Town, but ‑ ‑ ‑?‑‑‑
Ms Mayne: I don’t feel safe anywhere in Victoria. End of story. Can we please stop triggering my PTSD?
MR KUAN: So you don’t want to travel to Victoria ever?‑‑‑
Ms Mayne: No.
Mr Kuan put to the mother that there was nothing preventing the mother travelling to Victoria to see X. She said that she could travel to Victoria by plane but she would not leave the air terminal because, so she said, she did not feel safe.
On behalf of the ICL, Ms Damon obtained the mother’s evidence that the mother put her dreams and herself ahead of X. The mother said she had to do that because her other children deserved equality in life. In answer to Ms Damon, as with her answers to Ms Agresta, the mother repeated that she believed the father and Ms Tomlin had alienated X from the mother and coached him. The mother disagreed with Ms N’s addendum report. Ms Damon’s question was as follows –
MS DAMON: So are you saying that you perhaps know better than the experts in this matter?‑‑‑
Ms Mayne: The expert that tried to tell my Aboriginal children that they should be grateful that white people came to Australia? Yes, I totally believe .....
The mother answered Ms Damon’s question by saying she disagreed with three experts because the experts did not contact the mother. Her answer was as follows –
MS DAMON: And that’s just a brief nutshell of what the experts say in this matter, and you’re telling me that you disagree with three experts?‑‑‑
Ms Mayne: Yes, experts that have never, ever, ever, ever contacted me. One of the experts, I didn’t even know she was involved.
Without warning the mother left her house while Ms Damon was cross-examining her and walked to a bus stop to collect one of her children. It struck me that it was not appropriate to continue. However, the mother had already removed her earphones so I adjourned the court for the day. The mother’s behaviour was entirely erratic and undisciplined.
On the second day of the trial Ms Damon resumed her cross-examination of the mother. The following were the more important matters that arose from her evidence –
a)the mother did not know why her time with X had been suspended;
b)she read a report from a paediatrician “with a whole heap of lies” (her words);
c)the mother was not given an opportunity to defend herself;
d)the mother’s dog is not aggressive;
e)the mother was “completely and utterly slandered” (her words);
f)the mother said she found “a load of absolute bullshit” (her words) that her time with X was suspended after he received one scratch on his back sleeping on a mattress watching movies;
g)the mother tried to kill herself;
h)that was diagnosed as emotional turmoil;
i)she was “completely disassociated from X” (her words);
j)she has started focusing on her three other kids ensuring they can have the life they deserve “so that they don’t have to live the life that X is living being alienated from a parent” (her words);
k)she said without identifying who “you guys caused me to try and take my own life” (her words) and “21 fathers a day kill themselves”;
l)the mother said she tries not to think about X “because it puts me in quite an emotional state” (her words);
m)there is no relationship between the mother, the father and Ms Tomlin;
n)the father and Ms Tomlin are “trying to out wipe 50% of (X’s) identity” (her words);
o)according to the mother, the father and Ms Tomlin do not want the mother to have a relationship with X; and
p)the mother has made complaints about Dr K.
The mother was vocal in her criticism of psychologist Ms N. The exchange between Ms Damon and the mother was as follows –
MS DAMON: And you’ve just again indicated that you’ve had some concerns with Ms N as well, the family report writer?‑‑‑
Ms Mayne: Yes. She made me take my indigenous children to an immigration museum, tell my indigenous children they should be grateful for ..... coming in and destroying their family. She told me off for speaking in indigenous language to my indigenous children, which I don’t tell other people not to speak their home language, where this is Aboriginal land. If Aboriginal people want to speak indigenous language, they’re more entitled to it. It’s their land. If you don’t like, you get out of Australia.
The mother was equally vocal in her criticism of the legal system. It took very little prompting by Ms Damon to cause the mother to embark upon her various theories. Her evidence was as follows –
MS DAMON: What about your conduct during these proceedings and your evidence? Would you change anything about that?‑‑‑
Ms Mayne: No. I will continue to expose our court system.
MS DAMON: Okay. Now, I just want to take you back to yesterday when Ms Agresta was asking you about a number of social media posts that you made. Do you recall that?‑‑‑
Ms Mayne: Yes. Yes.
MS DAMON: And some of those were venting your frustration at the family law system, which you feel is corrupt, which you’ve just indicated again you still feel?‑‑‑
Ms Mayne: I don’t know. I think the one she brought up was CPS, not the family law court system. But, yes, I have made a number of posts regarding the corruption. I quite often use the hashtag “HHH”. I’m very, very – I’m in a lot of ..... groups. I’m part of the … family law inquiry. I’m a part of groups that are trying to get royal commissions into family law courts. I’m part of a group with lawyers trying to get a royal commission. Yes, part of a number of groups who are trying to stop the amount of children, men and women dying every day because of the result of Child Protection and the family law court system.
MS DAMON: And yesterday you also spoke about taking this matter public; is that correct?‑‑‑
Ms Mayne: Well, yes, I contacted [the media], and once this is all over and done with, they’re willing to run the story.
MS DAMON: And do you understand that there is a provision in the Family Law Act that prevents you from speaking about these proceedings ongoing and current?‑‑‑
Ms Mayne: There’s a way around it. Once it’s finished, I’m allowed to talk.
For some reason the audio of that evidence was problematic so I asked the mother to repeat her evidence. The exchange was as follows –
HIS HONOUR: I’m sorry, I didn’t hear that.
MS DAMON: Yes.
HIS HONOUR: Sorry, I didn’t hear that. Would you mind repeating that, please?‑‑‑
Ms Mayne: Once the court case is finished, I’m allowed to talk. Plenty of other parents are talking out. We’re sick of being silent against our children being failed. If people don’t talk out, how can we make change? Because there has already been recommendations from previous royal commissions into the family law court. The family law courts have refused to adapt to those recommendations, so we need to keep talking out. And change is needed. We’re losing valuable lives because of this family law court system. 21 fathers a week are committing suicide because they are alienated from their children and the courts are allowing that. Kids are dying at the hands of the family law court. Mothers are killing themselves because of family law court. Heck, I nearly became one of those statistics after I took 800 milligrams hysterical after I was told I was no longer allowed to see my son. Because the pain you feel – this child I grew inside me, this child I cared for solely – Mr Tomlin never attended no appointment. He hardly ever saw X. He told me Mr Tomlin wouldn’t let him see X. So I raised this child for 12 months, had him ripped out of my arms, completely had my name run through the mud, had Ms Tomlin and Mr Tomlin trying to get my other kids removed off me constantly. You try and think of the pain that we as alienated parents face every single day, not knowing is my child okay. Is he crying, is he missing me, has he been tucked into bed tonight, has he had a kiss goodnight tonight?
On one construction of the mother’s evidence it was open to me to conclude that the mother took the view that a royal commission into family law was required unless she obtained precisely what she wanted in this litigation. That tended to demonstrate that the mother’s insight into the quality of her parenting of X was defective in the matter ultimately contended for by Ms Agresta.
Safety issues
By way of overview, it is necessary to make some preliminary observations about the evidence concerning the matters in s 60CC(1) and s 60CC(2) of the Family Law Act. Ms Tomlin gave evidence in her 10 August 2020 affidavit about matters of X’s safety, both physical and emotional. Ms Tomlin deposed to the following –
a)on 18 February 2018 W bit X’s arm yet the mother did not inform the respondents about that incident;
b)on 13 May 2018 W bit X on the shoulder yet the mother did not inform the father and Ms Tomlin about that incident;
c)on 22 July 2018 the mother gave X medication without first notifying the father and Ms Tomlin;
d)on 1 April 2018 X reported to Ms Tomlin that “W called dad a cunt today”;[1]
e)on 15 April 2018, in the presence of the father, Ms Tomlin, X and the mother, W pointed to Ms Tomlin telling X that “there’s your mum” to which the mother “screamed at him ‘that’s not his fucking mum’”;[2]
f)on 10 January 2018 X told Ms Tomlin that she could not be at drop off as the judge (a reference to his Honour Judge Curtain) said so; and
g)on 17 January 2018 X returned to the care of the father and Ms Tomlin with bed bug bites and a large bruise as a result of W kicking X.
[1] Paragraph 12 of the affidavit of Ms Tomlin made 10 August 2020. Those words have been reproduced verbatim.
[2] Paragraph 13 of affidavit of Ms Tomlin made 10 August 2020.
Ms Tomlin gave evidence of details of conversations that have occurred between Ms Tomlin and X revealing that the mother had immersed X in aspects of this litigation. Those were recited between paragraphs 16 to 73 of Ms Tomlin’s affidavit. It is neither practical nor necessary to recount all of them in precise terms. However, the following are the more significant of them –
a)on 28 January 2018 X told Ms Tomlin that the mother had told X that Ms Tomlin was overdosing X on medication;
b)the following day Ms Tomlin verified with Dr K that Ms Tomlin was administering the correct dosage of medication to X;
c)on 2 March 2019 the mother told Ms Tomlin at changeover that the mother took W to court when seeking an intervention order;
d)at the event on 2 March 2019 the mother took all children including X past an incident involving a person being arrested where they stopped and watched;
e)on 12 May 2019, after having been placed in a refuge somewhere near GGG Town, the mother attempted to engage Ms Tomlin in conversation about this litigation in the presence of X;
f)on 25 May 2019 the mother told X that she would be moving from Melbourne to QQ Town to NNN Town and to other locations;
g)on 8 June 2019 in the presence of Ms Tomlin the mother told W that he would not be fed that night because of his bad behaviour on the tram;
h)on 12 October 2019 the mother accused Ms Tomlin of putting medication in X’s drink;
i)on 28 January 2020 while at court, the mother while speaking to an unidentified person stated that she (the mother) had not wanted both W and X when each had been born;
j)on 15 February 2020 X told Ms Tomlin that the mother filmed X and that the mother said she would “show it all to court,” so Ms Tomlin said; and
k)on 1 February 2020 X told Ms Tomlin that the mother told X that the mother wanted X to attend court but that X was not to tell anyone that the mother talks to X about it (“it” I infer, was the discussion about taking X to court).
In her same affidavit Ms Tomlin addressed X’s anxiety levels. The following is a distillation of the more important evidence on point as given by Ms Tomlin –
a)X requires reassurance in relation to the dosage of medication that is administered to him;
b)on 12 October 2019 X became anxious after the mother falsely asserted that Ms Tomlin had infused X’s drinking water with his incontinence medication resulting in X’s behaviour appearing agitated by fidgeting, his biting his sleeve and becoming frustrated;
c)further on the same day W screamed so loudly that X cried because of sensory overload;
d)this resulted in X soiling himself which required him to sit for 30 minutes after Ms Tomlin changed X;
e)on 16 January 2020 while travelling on the train X told Ms Tomlin words that Ms Tomlin reproduced verbatim[3] as follows –
[3] Paragraph 46 of her affidavit.
X was yelling “I’ve had it! I can’t do this anymore. I can’t go back to mum’s, I just can’t!”;
f)on 16 January 2020 on the same train journey X told Ms Tomlin that the mother blamed X for everything and that everything was X’s fault;
g)on 28 January 2020 X became distressed at what he said was the mother’s stated intention to have an adult discussion with X;
h)on 1 February 2020 X returned to Ms Tomlin’s care heightened and physically on edge, displaying sleeve chewing and personal physical attachment to Ms Tomlin preventing Ms Tomlin from moving away;
i)X disclosed to Ms Tomlin on that day that the mother told X that the mother wanted X to go to court;
j)on that same day, 1 February 2020, X told Ms Tomlin that the mother blamed X when W fell from a chair;
k)on 7 April 2020 X became extremely anxious (Ms Tomlin’s words) at the prospect of spending time with the mother the following day because of his fears concerning the mother’s dog and W’s behaviour;
l)on 9 April 2020 X informed Ms Tomlin that he had been anxious while at the mother’s home because he said W had removed screws from the bunkbed in which X was sleeping rendering it “wobbly” (a word attributed to X);
m)on the same day, 9 April 2020, X told Ms Tomlin that the mother had taken X to court that day, a revelation that perplexed Ms Tomlin having regard to the anxiety that was caused to X by the prospects of his attending court;
n)on the night of that day, that is to say 9 April 2020, X suffered nightmares, crying while asleep, requiring Ms Tomlin to place her hand on his shoulder while reassuring him that he was safe and at home; and
o)subsequent to the mother’s time with X being suspended by order on 21 April 2020, X has demonstrated happiness.
On 9 May 2020 Ms Tomlin deposed to being informed by X’s father Mr Tomlin, the first respondent, that the mother had sent the father a text message that the mother requested the father to pass on to X. Ms Tomlin narrated the text message verbatim. It was as follows –
Plz let X know I love him. And can I plz have an update and photo. Tell X his mummy and mama love him heaps.
Ms Tomlin said several things about that message. First, she said the message was inappropriate in that the mother was revealing that her new partner was a woman. Second, Ms Tomlin said the mother was seeking to convey by that text message that the mother’s new partner had acquired the status of X’s mama. Third, X had not even met the mother’s new female partner yet the mother was requiring Ms Tomlin and Mr Tomlin to describe her as X’s mama.
In her affidavit, Ms Tomlin narrated the risks posed to X by X being in the mother’s care in the presence of W. That phenomenon featured heavily in this case because the risk to X through his interaction with W provided the foundation for contentions advanced by the independent children’s lawyer, by Mr Tomlin and by Ms Tomlin that X’s time with the mother (and with her, W) should be limited to identity time.[4] It also provided the foundation for submissions that whatever may follow in the determination of the desirability of X maintaining some connections with his siblings, the benefit of that connection is outweighed by the risk of harm to X.
[4] For illustrations of “identity time,” see Director-General of the Department of Human Services (NSW) v Tran (2010) 44 Fam LR 1, Neligan v Lassey [2012] FamCA 257, Dunn v McKernan [2014] FCCA 2907, Cooke v Morton [2018] FamCAFC 9, Elias v Elias [2019] FamCAFC 53, McKerrow v Dever [2019] FCCA 1308, Atkinson v Atkinson [2019] FamCA 436, Kaube v Randall [2018] FamCA 749 and Percy v Curtis [2019] FamCAFC 189.
Let me now go to Ms Tomlin’s evidence of X’s interactions with W. Relevantly distilled from her affidavit, Ms Tomlin said the following –
a)on 18 February 2018 W bit X on the arm, an incident that the mother did not communicate to Mr Tomlin and Ms Tomlin;
b)on 13 May 2018 W bit X on the shoulder, an incident that the mother did not communicate to Mr Tomlin and Ms Tomlin;
c)on 17 January 2018 X returned from the mother’s with bed bug bites and a large bruise on his leg where W had kicked X;
d)on 2 February 2018 the mother revealed that W had been sent home from school after biting another student;
e)on 16 March 2019 W hit X, W hit his sister in the face and W bit the mother;
f)on 30 March 2019 W wet his pants in front of people, he stabbed a child at school with a pencil and he stabbed X in the back with a disposable fork;
g)on the same day, 30 March 2019 W put his hands around X’s neck;
h)on 15 April 2019 W hit and kicked the mother;
i)on 25 September 2019 W growled at Ms Tomlin during X’s changeover;
j)on 12 October 2019 W repeatedly attempted to grab at X;
k)on the same day, 12 October 2019 the mother grabbed at W;
l)also on 12 October 2019 W screamed so loudly at X that it caused X to cry by reason of sensory overload;
m)on 29 October 2019 the mother revealed that W had been suspended from school so she was taking W to hospital for something to modify his behaviour;
n)on 11 November 2019 the mother revealed that W had been suspended for three weeks from school for breaking a door and throwing a desk;
o)on 11 November 2019 W kicked X in the stomach, smacked X in the head and slapped X, W hit his sisters while the mother failed to intervene, W put his hands on one of his sister’s throat and W hit Ms Tomlin and pinched her;
p)the mother posted a video on Facebook of W’s behaviour described in the immediately preceding subparagraph;
q)on 11 November 2019 the mother’s dog jumped on X while X attempted to eat his lunch;
r)on 21 November 2019 X told Ms Tomlin that the mother’s dog attempted to bite X and that X had told the mother to put a muzzle on the dog;
s)on 16 January 2020 X returned to the care of Mr Tomlin and Ms Tomlin presenting with “long deep scratch marks on his back and leg and two bruises on his arm” (Ms Tomlin’s words), those injuries having been made by the mother’s dog after the mother made X sleep on the floor so as to prevent X waking W;
t)X told Ms Tomlin that the bruises described in the immediately preceding subparagraph were from W; and
u)on 7 April 2020 X told Ms Tomlin that he was anxious at staying overnight at the mother’s as the bedroom door did not close and the mother’s dog could get in with the possibility that the dog could hurt X.
Ms Tomlin deposed in her affidavit that the mother had changed her Facebook profile from having four children to three, namely W and the twin girls.
That last matter was significant in my view. On one construction of events it seemed to represent a concession by the mother that she no longer considered X to be her son. Yet that construction was inconsistent with her overall thesis in this case that she wanted a role in X’s life, that she sought equal shared parental responsibility for X and that she would take this litigation as far as it could go to obtain equal shared parental responsibility for X.
Ms Tomlin was subjected to searching cross-examination at the hands of all counsel, although I hastened to add, never in any disadvantageous or improper manner.
On behalf of the mother, Mr Lovering of counsel put to Ms Tomlin that the mother’s proposal for X to spend time with the mother and X’s siblings was feasible. In response to that and other propositions put by Mr Lovering, Ms Tomlin gave the following evidence –
a)X has never said he wants more time with the mother (T149);
b)Ms Tomlin has been with X’s father since a time prior to X’s birth (T149);
c)in response to a question about her feelings for the mother, Ms Tomlin said she had none as she valued X’s needs (T151);
d)Ms Tomlin said she will encourage phone contact between X and the mother (T151);
e)Ms Tomlin disputed X’s ability to travel to New South Wales in order to spend time with the mother (T153);
f)in January 2020 X returned from his time with the mother with bites (T154);
g)Ms Tomlin has encouraged X to draw pictures for the mother and X’s siblings (T155);
h)Ms Tomlin accepts that as a result of the mother’s move to New South Wales the children will not see each other again (T155);
i)Ms Tomlin has encouraged X to write to his siblings;
j)Ms Tomlin would support X telephoning the mother if it was in X’s best interests to do so but any such telephoning will be in X’s discretion (T157);
k)X’s telephoning of the mother stopped in April (T158);
l)X calls Ms Tomlin by her given name (T158);
m)X sees Ms Tomlin as a maternal figure who offers him care, compassion and support (T158);
n)X knows of his maternal grandmother but he does not talk to her (T159);
o)X does not become stressed or distressed at not seeing the mother (T159); and
p)X takes long acting Ritalin if he needs to focus on getting ready for school and the short acting Ritalin that he takes lasts for two hours (T164 – T165).
On behalf of the father, Ms Agresta of counsel cross-examined Ms Tomlin. The following were the more important matters that emerged from Ms Tomlin’s evidence when cross-examination by Ms Agresta –
a)Ms Tomlin agreed that by reason of the father’s intellectual disability the father would have some difficulty on his own in understanding the medical information in this case (T166);
b)Ms Tomlin agreed that X’s father would have trouble on his own making decisions about X’s best interests (T167);
c)Ms Tomlin did not know why the mother did not attend the psychological assessment conducted by Ms WW in 2018 as there was no impediment to the mother attending that assessment (T168);
d)to Ms Tomlin’s knowledge the mother has independently liaised with Mr RR, the psychologist (T168);
e)at changeovers, Ms Tomlin tells the mother about X but the mother is disengaged and talks about W at school instead (T169);
f)Ms Tomlin has sent the mother text messages with strategies Ms Tomlin has used to assist X so that the mother can use those strategies (T169);
g)nothing prevents the mother from contacting the school and the father has previously provided details to the mother (T170);
h)the mother’s evidence was wrong when she asserted that she did not know where X went to school as Ms Tomlin had told the mother (T170);
i)Ms Tomlin denied she had excluded the mother (T171);
j)Ms Tomlin denied she and X’s father were disrespectful towards the mother (T171);
k)the mother usually does not respond when Ms Tomlin and X’s father sent texts to the mother about X’s visits to the doctor (T172);
l)the mother struggled greatly with the children together (T173);
m)Ms Tomlin told the mother that X had wet his underpants and soiled his underclothes (T174);
n)the mother attempted to minimise the level of violence between the mother and all children and the mother often ignored it (T175);
o)W often yells in X’s ear (T175);
p)X does not lash out at anyone (T176);
q)Ms Tomlin denied the mother’s assertion that X is an abused boy in the house of Ms Tomlin and X’s father (T176);
r)X is exposed to the mother’s negative views (T176);
s)until orders for the mother to have fortnightly time were suspended this year, Ms Tomlin and X’s father complied with those orders even though they had concerned for X’s safety (T177); and
t)X cannot cope with travelling by plane to another state.
Ms Damon of counsel for the ICL cross-examined Ms Tomlin. In response to Ms Damon’s cross-examination, Ms Tomlin gave evidence the more important of which was as follows –
a)since April 2020 X’s behaviour has dramatically improved and he has improved at school (T178);
b)if the mother came back to Victoria, a great deal of work would need to be done if the mother’s time was to recommence having regard to X’s anxiety levels (T178-179);
c)Ms Tomlin has concerns that if X is sent interstate to New South Wales the mother will not administer Ritalin (T179); and
d)Ms Tomlin is willing to give X a photo of the mother and of X’s siblings (T180).
The father, Mr Tomlin, gave evidence in his affidavit and in his answers to questions put to him in cross-examination. So far as matters arising from the father’s affidavit made on 10 August 2020 were concerned, the following were the more important –
a)he is married to Ms Tomlin and the two care for X;
b)in 2020 X commenced school at PP School in year four where he is thriving;
c)in his previous school, X struggled and he did not have the support he needed;
d)X suffers with emotional regulations and from sensory overload;
e)with his sensory overload, X requires assistance with things such as clothing, close movement around him, hugging or touching;
f)since 2017 X has been under the care of his paediatrician, Dr K;
g)X has been diagnosed with ASD, ADHD, anxiety and until recently, bed wetting;
h)Dr K has expressed concerns about X’s mother’s protection of X;
i)since May 2020 X does not get upset on a Friday;
j)in August 2018 X was diagnosed with ASD and that he needs a speech pathologist’s help;
k)X has regularly seen a speech therapist, an occupational therapist and a psychologist;
l)the mother has been unable to support X’s special needs;
m)since October 2012 X has been in the full-time care of X’s father and Ms Tomlin;
n)on 21 April 2020 X’s time with the mother was suspended, since which time X has thrived;
o)X, the father and Ms Tomlin have not met the mother’s new partner;
p)the father opposes X travelling to New South Wales to spend time with the mother;
q)the mother is unable to accommodate X in her two-bedroom home;
r)on 30 April 2020 the mother sent a text to the father stating that the mother would not be returning to Victoria from New South Wales; and
s)X has expressed concern that he is not present with his sisters to protect them and to prevent W from hurting them.
The father gave evidence in his affidavit of various text messages he received from the mother, one of which was dated 11 May 2020. It was in the following terms –
34(a)“pass this message onto X, his mummy and mumma love him”. I can only assume that the second mumma is Ms Mayne’s new partner. Ms Mayne also sent a further message, “Can I please get an update plz. After all he is my son and alienating him won’t work. Refusing to give updates proves alienating I have placed a DHHS report as in believe you are abusing and neglecting him and also coaching him. Also parental alienation is child abuse especially when you have coached him to make false allegations about DHHS deemed malicious they are looking at charging you with false reporting”. I did not respond to this text message.
On 14 May 2020 the mother sent the father another text message. The father did not respond to the earlier text message from the mother. The 14 May 2020 text message was in the following terms –
34(c)“Just attempting to get an update again. Mr Tomlin you are a deadbeat trying to erase me X’S MOTHER out of his life. Just remember for the first year of his life you wanted nothing to do with him. I raised him alone with no help from you at all. I will drag you through court until X is 18 and guess what after this court trial you will have to travel to New South Wales to the court. I won’t be stopping fighting for justice for MY SON. You allowed him to be molested and I will make sure X knows the truth. I will be showing him all the paperwork and telling him everything you did to me including grooming me as a minor”.
The following day, that is to say on 15 May 2020 the mother sent yet another text message to the father. That text message provoked the father into obtaining an intervention order against the mother. The message was as follows –
34(d)“Just attempting to get an update on X and gathering proof you are actively alienating me. I have applied in New South Wales for full custody of X as I have ample evidence of you and Ms Tomlin abusing X. Thanks to many people you know messaging me”.
The father expressed his concerns about the mother’s parenting capacity. He said the mother is unable to provide a stable environment for X in which she provides structure, routine and emotional stability. The father said he fears for X’s safety while X is in the mother’s care. The father said he is unable to communicate with the mother in a manner that is not verbally abusive. The father narrated concerns about the mother’s capacity to behave in a protective manner towards X in the period June 2011 to July 2012. The father also narrated threats made by the mother upon Ms Tomlin’s life.
Between paragraphs 57 and 98 of the father’s affidavit he narrated a collection of incidents that have given rise to the father’s concerns about the mother’s provision of care for X since this litigation commenced. The time frame of those incidents was February 2016 to April 2020. Among the more significant of those incidents were the following –
a)on 7 February 2016 at changeover the mother yelled at Ms Tomlin and the father telling them to stop talking to Ms AA, whereas the father and Ms Tomlin said they do not know anyone by that name;
b)on 20 March 2016 at a changeover the mother yelled out “W, they are taking X away from you”;
c)on 28 August 2016 the mother forcefully demanded that the changeover take place inside a police station resulting in the mother grabbing X’s jumper causing his jumper to tighten around X’s neck;
d)on 9 August 2016 at changeover the mother was speaking on the telephone to someone else when she told the father and mother to ensure that X was appropriately dressed at the next changeover, whereas X was in fact appropriately dressed;
e)on 5 March 2017 at changeover the mother told Ms Tomlin that X’s behaviour had been “disgusting” (the mother’s word) and after X unsuccessfully attempted to defend himself against the mother’s accusations, X’s behaviour deteriorated and he struggled emotionally for the week;
f)during January 2018 Dr K informed the father that the mother had telephoned Dr K, twice, threatening to complain to the relevant medical disciplinary body about Dr K;
g)in September 2018 the mother sent the father a text telling the father that he had permitted X to get molested;
h)in January 2019 X reported to the father that when at her house, the mother let X stay up until after midnight;
i)in March 2019 X reported that the mother telephoned X during which conversation the mother said one of the twins had defecated on the floor and the other twin had slipped over on the floor; and
j)in April 2019 X spent time with the mother while the mother was in a refuge and the mother told the father and Ms Tomlin that she (the mother) would take X to the zoo when in truth she went to a refuge.
The father delved into the nature of the relationship between X and W pointing out that it was complicated and violent. The father set out in a logical and chronological sequence events involving W, X and others from late 2016. Those events included the following –
a)on 20 December 2016 X returned from his mother’s care with bite marks on his forearm, back and armpit that the mother revealed had been inflicted by W;
b)during 2018 X returned on several occasions after spending time at his mother’s with marks on his legs made by W from kicking and from bed bugs;
c)on 16 March 2019 the father observed W strike the mother;
d)on 30 March 2019 the father observed W stab X with a plastic fork;
e)on 3 August 2019 the father heard W threaten the mother and X;
f)on 11 November 2019 W choked his sister;
g)on 11 November 2019 W pinched and slapped Ms Tomlin while Ms Tomlin was shielding X from W;
h)in October 2019 the mother told the father W had been suspended;
i)in November 2019 the mother told the father that W had been suspended from school for breaking a door from punching it and for throwing a desk thereby placing the school in lockdown;
j)in November 2019 the father raised with the mother the significant impact that W’s behaviour was having on X to which the mother answered stating she did not care whether X or W ran away as the police would return them;
k)in 2020 W bit X;
l)on 15 January 2020 W placed his hands around X’s neck leaving visible marks;
m)on 14 March 2020 while collecting X the father saw W running all over the road; and
n)W constantly yells at X.
The father pointed out that the mother took no step to protect X. The father referred to his attempts to ensure that the mother kept her dog away from X because the dog had earlier attempted to bite X.
He pointed to another illustration of the mother failing to act protectively in January 2020. While at a changeover at a fast food restaurant a fight broke out between other patrons requiring the father and Ms Tomlin to assist the four children because the mother became involved in the fight.
On 16 January 2020 X told the father and Ms Tomlin that he (X) could not return to the mother’s home because the mother blamed X for everything. On that occasion the father said he inspected bruise marks inflicted on X by W and scratch marks inflicted on X by the mother’s dog when the mother forced X to sleep on the floor.
On 7 April 2020 X expressed his concern to the father and to Ms Tomlin that the mother would not prevent her dog from entering her lounge room and that W had removed the screws to a bunkbed thereby rendering it unsafe
The father reported that X told the father on 9 April 2020 that the mother had said that staying home was not safe anymore.
The father reported that on 20 April 2020 X told the father he (X) hated Tuesdays as on Tuesdays the mother telephoned X.
The father denied the mother’s allegations that Ms Tomlin’s sister had touched X on his genitals. The father said X and Ms Tomlin’s sister were always under supervision.
The father was cross-examined. It is necessary to identify the evidence he gave in answer to questions put to him in cross-examination by counsel for the mother, Ms Tomlin and for the ICL.
In answer to questions put in cross-examination by Mr Lovering, the father did his best to provide all he could from his memory or from his knowledge of X. At times, the father had trouble with Mr Lovering’s questions, occasionally asking Mr Lovering to “dumb it down” (those were the father’s words) as the father encountered trouble with either the form of wording used in the question or the concept being enquired after. The following is a distillation of the father’s responses to the questions put by Mr Lovering –
a)the mother should have time with X four times a year only in Victoria and no overnight time (T113);
b)despite having autism and ADHD, the father says X is “pretty smart for his age” (T114);
c)it should be at X’s discretion when the mother sees him so long as X is safe (T114);
d)X is thriving at school although he misses his sisters (T117);
e)X has not said he is missing his mother (T117);
f)X should wait until he is 12 before he goes travelling (T117);
g)X does not know that the mother has permanently left the State of Victoria (T121);
h)the father agreed that the mother does not have the money to travel to Victoria (T123);
i)X will not cope with travelling to another state (T130);
j)the father has an acceptable understanding of X’s medications and how they are to be administered; and
k)for X’s sake, the father does not want the mother to disappear. (T151)
Counsel for Ms Tomlin obtained an admission from the father that the father would encourage video conferencing when X spends time with the mother.
Ms Damon of counsel for the ICL cross-examined the father. In answer to those questions the following evidence emerged –
a)the father agreed that since the mother’s time with X was stopped in April, X’s school work had improved, he was calmer and there had been no meltdowns (T144 – T145);
b)since the mother had left for New South Wales, X had not said anything about his mother’s departure (T145); and
c)the father said he had attempted to make it easier for the mother to communicate with X (T147).
The information in that last subparagraph was to be contrasted with the mother’s evidence where she said, in substance, that the father and Ms Tomlin dislike the mother making it near impossible for the mother to maintain communication with X.
Assessing the key witnesses
From the foregoing it will be blatantly obvious that the mother, on the one hand, gave a diametrically opposite version of important events to the version of the same events as given by the father and Ms Tomlin. Not all required me to make a definitive finding, however. Yet the very big issues in this case did require me to make findings and in making those findings, in large measure it was necessary to address whether the mother was to be believed when she challenged the case advanced by the father and Ms Tomlin that X was not safe in her care.
During the course of the trial I had the opportunity of carefully observing the parties, their demeanour in the witness box especially. The applicant, first respondent and second respondent were cross examined for a number of days. Consequently, I was able to observe not only what they said but how they said what each said. As the trial judge I enjoyed all the benefits to which Kirby ACJ averted in Galea v Galea.[5] There, his Honour held that the advantages enjoyed by the trial judge were as follows –
a)hearing the evidence in its entirety;
b)hearing and seeing all evidence in context, chronologically and logically advanced;
c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence while fresh;
d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
e)observing body language, sometimes important for interpreting communication.
[5] (1990) 19 NSWLR 263.
Ms N also addressed the issues raised in s 60CC(2)(b). Her evidence on point has been set out above. Relevantly distilled, she said the following –
a)in her report dated 8 June 2017, Ms N recommended that the father and Ms Tomlin have sole parental responsibility for X, that X lie with Mr and Ms Tomlin and that the mother’s time with X was dependent upon her capacity to care for her four children;
b)in that same report Ms N stated that a reduction of time to day time should be considered if the mother’s mental health deteriorated;
c)Ms N’s was critical of the mother in Ms N’s report dated 10 February 2018, describing the mother as presenting “agitated, argumentative and self-entitled” and having “no understanding of the roles and responsibilities of other professionals separate from her own needs”;
d)furthermore, Ms N reported that –
“It remains that Ms Mayne is psychologically vulnerable with occasions of chaotic thinking, emotional reactivity and compromised life skills. She has the primary care of three young children, all with identified developmental issues which require significant attention. Ms Mayne capacity to meet the needs of X while simultaneously tending to the competing needs of her other children remains questionable over an extended period of time”;
e)in her 20 January 2020 report Ms N identified a number of risk factors including child safety and wellbeing;
f)Ms N reported that the mother was not forthcoming about current child protection issues as the mother told Ms N that those matters were private and unrelated to this proceeding concerning X;
g)the mother’s mental health also presented as a risk factor;
h)on one occasion an incident emerged whereby Ms N took the mother, W and X to the Museum during which the mother complained, was uncooperative, rude, overbearing, demanding, difficult, was preoccupied sending text messages and the mother’s supervision of X and W was lacking;
i)the mother accused Ms N of telling lies and that she, the mother, would be arranging for Ms N to be removed from the case;
j)Ms N described the mother as self-assured, haughty, superior in manner and presenting with an inflated sense of herself, her intelligence and her role in this litigation;
k)furthermore Ms N reported that the mother “seemingly, as an attempt to divert attention away from child protection concerns, Ms Mayne accused the writer of not respecting W’s, Z’s and V’s Aboriginal identity”;
l)further on in her report Ms N records the following –
“Ms Mayne’s desire to be respected and validated for her parenting of special needs children, and her knowledge of Indigenous matters, was evident at interview. Unfortunately, Ms Mayne’s fixation on these matters seemingly impairs her capacity to focus her attention on X and his needs and interests. More importantly, the impact on her children is that she has no insight into her behaviour or presentation and therefore she is unlikely to be able to change her behaviour”;
m)Ms N made a number of recommendations in her report including, but not limited to, the father and Ms Tomlin having sole parental responsibilities for X, X continuing to live with the father and Ms Tomlin, time with the mother should be conditional upon DHHS not finding an unacceptable level of risk of harm to X and the children in the mother’s care and if X discloses further or ongoing abuse in the mother’s care to his current paediatric and allied health professionals, the father and Ms Tomlin should be permitted to suspend time between X and the mother;
n)following the mothers relocation to New South Wales, Ms N prepared an addendum to her 20 January 2020 report;
o)in the addendum to her report Ms N states that no support can be given to requiring X to travel to New South Wales to spend time with the mother and that any time between X and the mother should occur in X’s familiar environment, being the QQ Town area;
p)any time with the mother should occur during the day only; and
q)any increase in time including overnight should occur in accordance with X’s expressed desire, at the discretion of the father and Ms Tomlin and by agreement with Dr K;
During Ms N’s examination-in-chief and cross-examination Ms N gave a number of answers pertinent for the purposes of s 60CC(2)(b). The more significant responses can be synthesised as follows –
a)since the mother’s time with X was suspended, X has settled, he is happier and he feels more secure (T241);
b)consideration of the relationship between X and his sibling focuses away from X’s actual needs (T246);
c)X has a fractured relationship with W which has contributed to his feeling unsafe in the mother’s care (T246);
d)Ms N did not take the view that X’s responses were coached (T246);
e)X has told Ms N that he does not want to sleepover at the mother’s (T247);
f)X is anxious about the mother’s emotional reaction to him (T247);
g)on one occasion when Ms N was to interview the mother, the mother arrived and the situation became very rowdy and noisy (T251);
h)on the issue of the risk of X’s relationship with his siblings diminishing, Ms N said that “while the mother lived in Melbourne there was some limited time as it was and, for X, if you take the evidence of the affidavits into account, they’ve been chaotic at times, they’ve been traumatic, they’ve been violent, and since that time has ceased, then X’s development, his happiness, his functioning has improved, so if that trajectory continues there is no disadvantage to X” (T255);
i)the mother is very defensive and feels very attacked and belittled with the result that she is unable to see the impact of her presentation and her belief system and her actions on X (T259);
j)it is difficult to help the mother to put in place the things that are necessary for X’s development and it is difficult to get her to prioritise X over her range of other parenting responsibilities with the other three children (T259);
k)the mother’s parenting has not improved substantially so the department has remained involved on a non-statutory basis (T260);
l)Ms N agreed that a risk existed by reason of the mother moving interstate and provided no tangible proof of support for W (T260);
m)the mother does not read the developmental needs of her sons and daughters (T261);
n)Ms N said the mother was “fighting an invisible war on 100 different levels and it affects her capacity to (be) attuned to the developmental needs of X. She’s interested in X but she doesn’t approach him in a developmentally sensitive manner” (T261);
o)Ms N said the mother has children with complex needs and Ms N suspected that X was probably not on the top of the hierarchy because he is functioning better than the others (T261);
p)Ms N went on to state that X is “emotionally compromised, psychologically compromised and it will take him a long time to make sense of his early upbringing. With his mother’s inability to understand that and her own presentation, he will continue to be at risk when he’s with her” (T262);
q)in providing recommendations Ms N reiterated that the mother having time with X should be subject to X expressing a desire to have time with the mother and likewise his siblings (T264); and
r)Ms N recommended weekly facetime calls up to 20 minutes, yet Ms N was adamant that X should be permitted to terminate any call and that the father and Ms Tomlin should be able to terminate any such call if they take the view during any such call that X was being traumatised, abused, mistreated or placed at risk (T265 – T266).
The mother denied the existence of evidence of factors to which the elements of s 60CC(2)(b) were directed. At the same time she stated that X and W were as bad as one another in their fighting. Ms Tomlin’s evidence was most reliable, in my view, about X being punched, kicked and bitten by W while in the mother’s care. She also gave evidence that W shouted in X’s ears adversely affecting his sensory sensitivities while in the mother’s care. Ms Tomlin spoke of W stabbing X with a plastic fork and the mother’s dog scratching X. Ms Tomlin also gave evidence that W removed bolts or screws to a bunk bed rendering it unstable and at risk of collapse occasioning fear in X.
I accept Ms Tomlin’s evidence on point without reservation. To the extent that the mother gave a contradictory version I reject her evidence. It is necessary to say why I reject the mother’s evidence on this issue.
As canvassed earlier in my reasons at paragraphs [106] to [121], during the course of the trial I had the opportunity of carefully observing the parties, including their demeanour in the witness box. Ms Tomlin’s, the father’s, Ms N’s and Dr K’s evidence was largely corroborative of one another on issues relevant to s 60CC(2)(b). In many respects that evidence aligned with the information provided from DHHS in response to a subpoena served upon it. Each spoke of risks of actual or suspected abuse of X. The mother did not challenge that evidence, preferring instead to cast her case on the benefit to be enjoyed by X in having a sibling relationship with W and the twins. To the extent that the mother denied the existence of abuse to X, I do not accept her evidence. She was a very poor witness. Ms N’s assessment of her accorded with mine, in that the mother was self assured, haughty, superior in manner and she had an inflated sense of herself and of her intelligence.
Mr Lovering, quite properly, conceded in his final address that the mother behaved badly as a witness. She did. It may be that her bad behaviour as a witness was the result of her ASD or her ADHD. It is equally possible that her behaviour as a witness was attributable to characteristics that Ms N identified, namely, that the mother is opinionated and aggressive. It is not necessary to attempt to attribute a cause to the mother’s poor behaviour in the virtual witness box. Nor is it necessary to decide whether the elements of s 60CC(2)(b) were enlivened in this case merely by an assessment of the mother’s own evidence. The evidence in this case went beyond proof on the balance of probabilities that in the mother’s care X was subjected to or exposed to abuse, neglect or family violence for the purposes of s 60CC(2)(b) of the Family Law Act. He therefore needed protection from physical or psychological harm from that subjection or exposure while in the mother’s care.
I accept that the mother had not set out to deliberately subject X to abuse, neglect or family violence when X has been in her care. Equally, I accept that the mother had not set out to deliberately expose X to abuse, neglect or family violence when X had been in her care. There can be no doubt that W has a collection of issues that would be demanding to any parent. The evidence about medical complications besetting the twin girls was less direct. However, suffice it to say that they too have demanding medical needs. The mother is presently very focused on W and the twin girls. On her own admission, the mother has disassociated herself from X, however.
Conversely, in the Tomlins’ care X is safe and genuinely loved by the father and by Ms Tomlin. To the extent that the father’s own intellectual shortcomings may impede him from fully and exhaustively performing his parenting functions as might a person of full intellectual capacity, Ms Tomlin diligently and lovingly fills any gaps. In addition, I was most impressed that Ms Tomlin genuinely has X’s welfare deeply ingrained in her daily existence. Everyday Ms Tomlin promotes X’s best interests. Ms Tomlin assists the father at every turn. They struck me as being utterly committed to every aspect of X’s development, whether physically, psychologically, medically, emotionally or developmentally. The same could not be said of the mother.
In the Tomlins’ care X has support and nurturing. He is free from the emotional upheaval occasioned by the chaos in the mother’s household. The Tomlins are completely attuned to X’s needs and they meet all those needs. The same cannot be said of the mother.
The concept of equal shared parental responsibility is predicated on there being an absence of reasonable grounds for believing that one parent or the other has engaged in abuse including causing the child to suffer serious psychological harm or serious neglect. Here, I take the view that reasonable grounds exist to believe that X, in the mother’s care is in fact subjected to serious psychological harm. No comparable reasonable grounds exist to believe X so suffers when in the care of the father and Ms Tomlin.
An order for equal shared parental responsibility in favour of the mother is not appropriate. I decline to make such an order.
Of course, the Family Law Act recognises the benefit of a child having a meaningful relationship with both parents. But when one parent’s relationship with his or her child subjects or exposes the child to abuse, neglect or family violence, then any such relationship must be subordinated to the need to protect the child. In my judgment, in this case the benefit of X having a meaningful relationship with his mother must take a secondary position to the need to protect X from being subjected to or exposed to abuse, neglect or family violence when in the mother’s care.
In this case Mr Lovering placed heavy reliance on the consequences to X if he were to have little time with the mother because, so he said, in the process X would therefore have little time with his siblings. Mr Lovering was addressing the consideration mentioned in s 60CC(3)(d) of the Family Law Act. As was canvassed throughout the trial of this proceeding, the provisions of s 60CC(3)(d) are one of 14 discrete elements that the court is required to take into account in ascertaining what is in a child’s best interests. It does not predominate.
Each element of s 60CC(3) calls for separate examination. Counsel for the ICL called in aid my decisions in Richter & Richter[124] and Ambler & Ambler.[125] While fact-specific in each of those decisions I did make observations about the important provisions of the Family Law Act that operate in this case. And even though the mother told me many times she will appeal against my decision, it is nevertheless essential for me to expose my path of reasoning in arriving at the conclusion I have reached recognising that the elements of s 60CC(3) assist in the determination of the child’s best interests.
[124] [2019] FamCA 507.
[125] [2019] FamCA 870.
Among the provisions more heavily debated was s 60CC(3)(a). That subsection invites attention to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight to be given to the child’s view. As has been canvassed above at length, Ms Tomlin, the father, Dr K and Ms N all referred to the views expressed by X that he prefers living with his father and Ms Tomlin. Each referred to the fact that X prefers to be in the care of his father and Ms Tomlin. Each said X has expressed the view that in the mother’s care X is exposed to violence – physical, emotional and psychological – occasioned by W and the mother’s dog. Mr Lovering submitted that in some of her responses to questions put by him Ms Tomlin was evasive. I disagree. I found Ms Tomlin to have been not only a most favourable witness but an exemplary person in her approach towards X and to her husband’s interaction with X. X is thriving in the care of the father and Ms Tomlin.
True, X is 10 years of age and, at one level, there is something to be said in the cautionary approach of being slow to accept the views of a 10 year old, especially a 10 year old with ASD. That said, Dr K gave unmistakeable evidence which I accept without reservation that X is intelligent and well developed for his age. Ms N took a largely similar view. The father and Ms Tomlin gave evidence that X is articulate and intelligent. In my view an abundance of evidence exists to support the conclusion that I should have regard to the views expressed by X as conveyed to me by Ms Tomlin, the father, by Dr K and by Ms N.
Under s 60CC(3)(b) it is necessary for me to consider the nature of the relationship with the child of each of X’s parents and any other parent, relevantly here, the mother’s new partner as well as Ms Tomlin. This section calls for a dissection of the evidence of X’s relationship with the mother, the father, the mother’s new partner and Ms Tomlin.
In my view, X enjoys a very favourable relationship with the father. True, the father has his own intellectual issues yet those do not bear in any way upon the love and care, the patience and support the father provides to X. Nowhere in the evidence was it suggested otherwise and on no evidence could I legitimately conclude that the father’s relationship with X was anything but loving, caring, patient and supportive. Undoubtedly, that explains, at least in part, why X is thriving in the care of the father and Ms Tomlin.
The same cannot be said of X’s relationship with the mother. In her many appearances before me, both at the interlocutory phases of this case and at trial, the mother presented as chaotic, disorganised, impulsive, ill-considered and given to explosive reactions to anything said to her. I entertain no doubt whatsoever that she has interacted over the duration of her time with X in the same manner. Further, the evidence revealed that the mother had encountered enormous difficulty in controlling W’s and X’s interactions especially when those interactions became violent. The evidence revealed that the mother was either too busy or unfocused on X’s needs when she returned X to the care of the father with soiled clothing. The mother either allowed, or failed to prevent, the dog scratching X. In my view it spoke loudly that the mother altered her social media status to delete reference to X. For that matter, she departed the state of Victoria on the whim of an alleged romantic involvement without telling X she was leaving and without saying goodbye. This was not a mother who was overly loving towards or caring for X. She seemed to prefer her own wishes in moving interstate. To my mind she had accepted her view of her circumstances in April 2020 that she was likely to encounter problems if she wanted to spend time with him thereafter so she took herself to New South Wales. Hers is not a loving, caring, protective relationship with X. The evidence revealed she failed to protect X from W. I entertain no confidence whatever that the mother will act protectively towards X or that her mindset will alter towards him. The mother moved on. She has no place in her life for X. Fortunately for X he has his father and Ms Tomlin.
To that must be added the mother’s evidence that she will not travel to QQ Town and if she travels to Victoria she will not leave the airport terminal. Such an approach offers very real insight into her willingness to interact with X. A relationship between a mother and an adolescent child cannot be undertaken at an airport terminal.
No evidence at all was adduced about the relationship between X and the mother’s new partner. No relationship has been formed.
Ms Tomlin, as has already been mentioned, is a woman of immense moral virtue. X does not call her or describe her as his mother. But Ms Tomlin represents a strong and utterly aligned woman in X’s life. She is unswervingly patient and caring toward X, something X seems to recognise. In Ms Tomlin’s care X is happy, calm, self-assured and, very importantly, making huge progress on life’s road.
To my mind, X’s relationship with the father and Ms Tomlin is loving, caring, protective, nurturing and supportive. X has no relationship with the mother’s new partner. His relationship with the mother has been described above and is significantly less beneficial to X than is X’s relationship with his father and Ms Tomlin.
In essence, s 60CC(3)(c)(i)-(iii) invites an examination of the extent to which each parent has taken, or failed to take the opportunity to participate in making decisions about major long-term issues, spending time with X and communicating with him.
This subsection called for examination across two time lines – pre-April 2020 and post-April 2020. Prior to April 2020 the father and Ms Tomlin participated in all the decision making in all major long-term issues. They did not miss the opportunity of spending time with X and they were in constant communication with X. That was not surprising as X has lived with them since 2012. When X was spending time with the mother, she seemed to take the opportunity thereby given with only tolerable levels of enthusiasm. The mother seemed to be sufficiently well-versed in X’s medication as to adequately administer it. That situation was to be contrasted with events in and after April 2020. It appeared from the evidence that upon the mother learning that by my orders made in April the mother’s time with X had been suspended, the mother detached almost immediately from X. She altered her social media status thereafter identifying as a mother of three, not four. The mother has not made any real endeavour to contact X since she moved to New South Wales where she says she will stay indefinitely.
Maintenance has not been an issue so the consideration in s 60CC(3)(ca) did not warrant investigation.
Section 60CC(3)(d) focuses on the likely effect of any changes in the child’s circumstances including any effect on the child of any separation from either parent or any child with whom the child has been living. X has been living with the father and Ms Tomlin since 2012. X has stayed over during holidays with W and the twins. The evidence revealed that X will miss the twins. The evidence revealed he will not miss W. The evidence did not reveal that X will be adversely affected by any separation from the mother. To the extent that X will or might be adversely affected by his separation from the twins, Ms N was of the view that he will not forget them and in any event, telephone or video time will ameliorate any separation complications.
As for s 60CC(3)(e), this issues raised a very significant matter in the case but one of the mother’s own creation. This subsection is concerned with the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. When the mother took her children to G Town, her travel expenses were paid for her. She has said she cannot regularly travel to the State of Victoria. The global pandemic will forbid her travel to Victoria for several months. But even if she were able to travel, the mother has said she will only fly to Melbourne Airport and she will not leave the airport when spending time with X. She said she will under no circumstances travel to X’s home in QQ Town. That position must be understood in the context, even if the pandemic restrictions enabled her to do so. Similarly, the father and Ms Tomlin are without funds to travel to G Town.
There will be major practical difficulties and expenses associated with X spending time with the mother in G Town. She does not wish to return to Victoria. Of course, where she lives is a matter for her. That said, the mother cannot expect the father and Ms Tomlin to travel with X at regular intervals to G Town merely to suit the convenience of the mother. The mother’s decision to permanently decamp to G Town was ill-considered and made impulsively. To the extent that her decision adversely impacts upon her time with X on a regular basis, the only feasible option open to all parties is for the mother to have electronic identity time. As I have said, the mother decamped Victoria impulsively. She must assume responsibility for the consequences of that decision.
Subsection 60CC(3)(f) invites a consideration of the capacity of each parent and other relevant person to provide for the needs of the child including emotional and intellectual needs. The father, with Ms Tomlin, is more than able to provide for all of X’s needs. I have no information about the mother’s partner. The mother has been found wanting in providing for X’s emotional and intellectual needs. She has failed to supervise and prevent W’s adverse impact on X. The mother’s own emotional and intellectual difficulties have led to her being unable to fully provide for X’s needs, including his intellectual and emotional needs. Conversely, when in the father’s and Ms Tomlin’s care X’s needs, including his intellectual and emotional needs are well accommodated.
Subsection 60CC(3)(g) invites an examination of the maturity, sex, lifestyle and background including lifestyle culture and traditions of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.
Let me take each parent and X in turn.
Of the mother, several things may be recorded. In no particular order –
a)she is young, 28 years of age, with four children;
b)she currently identifies as a lesbian and is keenly attuned to LGBTI issues;
c)her three youngest children were born to a man who identified as aboriginal and the mother is very vocal about their indigenous heritage;
d)the mother asserts an identity as indigenous; and
e)so far as her culture is concerned, she did not otherwise raise any particular matter.
Nothing emerged of significance about the father beyond his relatively modest intelligence.
So far as X was concerned, several things may be said. They included –
a)his ASD and other intellectual challenges;
b)his need for protection from injurious influences even from siblings;
c)his need for a routine; and
d)his need for those who care for him to be attuned to his sensory sensitivities in hearing and touch (as are the father and Ms Tomlin).
Ms Tomlin and the father are deeply aware of X’s needs, so I find.
X is not an aboriginal child and he is not a Torres Strait Islander child so s 60CC(3)(h) is not relevant.
Under s 60CC(3)(i) it is relevant to examine each parent’s attitude to the responsibilities of parenthood and to the child as demonstrated by each parent. The father, with Ms Tomlin, has been conspicuously devoted to his responsibilities as a parent as is reflected in the father’s conduct towards X since X commenced living with the father. The father has behaved in a well-balanced manner to ensure that X spends time with the mother. Doing his best, the father has gone to considerable lengths to foster a favourable relationship between X and the mother.
The mother adopted an approach to X and to the responsibilities of parenthood that was borderline acceptable until April 2020. At that point the mother became overwhelmed by the need for her life to become more self-focused and so she took her three children to New South Wales to pursue a fledgling relationship with a woman the mother met on Facebook. Thereafter the mother disengaged from X. Since April 2020 in my view the mother’s attitude to the responsibilities of parenthood towards X has been very poor. She has made no attempt to contact him. She now proceeds with open hostility towards the father and Ms Tomlin. She is willing to see X but not in Victoria except at an airplane terminal. She refuses to travel to X’s home in QQ Town. She expects X to travel to see her despite the impracticability of X flying as a minor on a plane. The mother’s approach to her responsibilities as a parent has shifted to such an extent that X has been, essentially, excised from her thoughts. That is a highly lamentable state of affairs.
Family violence is involved in this case and so s 60CC(3)(j) and (k) are enlivened. As canvassed above at paragraphs [244] to [251] and throughout my reasons, substantial evidence exists of family violence perpetrated against X for the purposes of subsection (j). In relation to subsection (k), on 15 May 2020 a family violence interim intervention order was made against the mother, the father and X being listed as protected persons for the purposes of the order. The father applied for the intervention order following a number of threatening and accusatory text messages received from the mother during early May 2020.
Finally, the form of order to be made fell into sharp focus for the purposes of s 60CC(3)(l). The ICL, the father and Ms Tomlin advocated for final orders to be made. They did not want interim orders as they said finality was needed. However, they said they feared there would not be an end to the litigation as the mother had already foreshadowed an appeal from this decision – for that matter any decision – that does not go her way.
The mother’s proposals have already been set out above.
The ICL’s proposals in which the father and Ms Tomlin largely agreed, involved the mother being required to seek my leave or that of another Justice of the court before she commences any further litigation involving X. She will need to invoke principles espoused in In the Marriage of Rice & Asplund.[126] In my view the proposal urged by the ICL and supported by all counsel other than the mother is warranted. I propose to make orders in the terms propounded by the ICL with which the father and Ms Tomlin agreed.
[126] (1978) 6 Fam LR 570.
Identity time and separating siblings
In his final address Mr Lovering of counsel quite properly conceded that the mother was not an especially favourable witness. It seemed to me that she performs on a daily basis with an array of psychological, intellectual and behavioural challenges that make her life more burdensome than most peoples’. Mr Lovering pointed out that despite those features, the mother nevertheless had been a good mother and orders propounded by the ICL would lead to X forgetting his mother and siblings over time. Mr Lovering placed very heavy store in s 60CC(3)(d) and (e), especially in the impact that the orders proposed would have on X’s time with his mother and siblings.
As appears above, Ms N did not accept the basic tenor of Mr Lovering’s thesis that the orders urged by the ICL would lead to X forgetting his siblings and them forgetting him. I accept that in view of Ms N’s very considerable experience in this field, her opinion in that regard is likely to be correct. It was an opinion that Dr K shared. Accordingly, based on the expert evidence in this case I take the view that X is not likely to forget his mother or siblings if the proposal urged by the ICL is adopted.
In addition, it must not be forgotten that s 60CC(3)(d) is one of 14 separate considerations in s 60CC(3) and no single subsection predominates over any other.
In my view the orders proposed by the ICL and in which the father and Ms Tomlin agree are in X’s best interests. I am prepared to make them and hereby do so.
Conclusion
I make the orders that appear in the first few pages of these reasons.
I certify that the preceding two hundred and ninety-seven (297) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 27 October 2020.
Associate:
Date: 27 October 2020
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