McLory and McLory
[2011] FamCA 364
•12 April 2011
FAMILY COURT OF AUSTRALIA
| McLORY & McLORY | [2011] FamCA 364 |
| FAMILY LAW - CHILDREN – Best interests of the child – Parenting orders – where there are allegations that the father sexually abused the child – where investigations by both the Department of Communities (Child Safety) and the Queensland Police Service concluded that the father had not sexually abused the child – where mother has previously withheld the child – where there is evidence that the mother seeks an enmeshed relationship with the child – where the father has been a recreational drug user – whether the father is an unacceptable risk to the child – with whom the child should live – with whom the child should spend time – where child to remain living with the mother – where child to spend substantial and significant unsupervised time with the father. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| AIF v AMS (1999) 199 CLR 160 Browne v Dunn (1894) 6 The Reports 67 Donaghey & Donaghey [2011] FamCA 13 Goode & Goode [2006] FamCA 1346 Hardie v Capris [2010] FamCA 1046 In the Marriage of Ferguson (1978) 4 Fam LR 312 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Read & Read (1984) FLC 91-527 U v U (2002) 211 CLR 238 |
| APPLICANT: | Ms McLory |
| RESPONDENT: | Mr McLory |
| INDEPENDENT CHILDREN’S LAWYER: | Emerson Family Law |
| FILE NUMBER: | BRC | 8082 | of | 2008 |
| DATE DELIVERED: | 12 April 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 23 June and 30, 31 August and 1 September 2010 and 18 March and 5 April 2011. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sara |
| SOLICITOR FOR THE APPLICANT: | BM Law |
| THE RESPONDENT: | Mr McLory in person. |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Kirkman-Scroope (23 June 2010) Mr Cooper (18 March and 5 April 2011) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Emerson Family Law |
Orders
IT IS ORDERED THIS DAY THAT
All previous orders, in so far as they apply to the V (‘the child’) born … February 2008, are discharged, and in lieu, it is ordered as follows:
Parental Responsibility
IT IS DECLARED THAT the presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (Cth) (‘the Act’) is rebutted in the best interests of the child.
The mother shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Act (as amended)) in respect of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:
a.Use her best endeavours to advise the father in writing of the decision intended to be made;
b.Seek the father’s written response in relation thereto;
c.Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d.Advise the father in writing as soon as reasonably practicable of her ultimate decision.
Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:
a.Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the child;
b.Any school which the child attends;
c.The Director of any extra-curricular school or other activity in which the child is involved,
to provide to the other party such information as might reasonably be required about the child together with any report, assessment or other such document provided to a parent in respect of the child.
Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the child as soon as reasonably possible after its occurrence.
Each of the parties shall advise the other and keep the other advised of:
a.Their residential address;
b.Telephone numbers at which they and the child can be contacted;
c.Any email address to which the child can have access,
and shall notify any changes in any such details within 48 hours.
Travel Outside of Australia
The parties each be restrained from removing the child and/or causing the removal of the child from the Commonwealth of Australia without the prior written consent of the other parent or an Order of the Court.
In the event that either party provides their written consent, they shall do all things and sign all necessary documents to affect the temporary removal of the child’s name from the airport watch list to the extent necessary to facilitate the child’s overseas travel with the other parent.
The Australian Federal Police are requested to maintain the name of the child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and retain the child’s name on the Airport Watch List unless the permanent or temporary removal of the child’s name is allowed by an Order of the Court (including the current Order) or the written consent of both parties to remove the child’s name given not less than 28 days prior to the intended date of travel, and for that purpose the child’s name is to be removed at any time when she is permitted by Court order or the parties’ written consent to travel outside Australia.
The mother’s lawyer and/or the mother forthwith deliver all original passport(s) for the child to the Registry Manager of the Brisbane Registry of the Family Court of Australia where such passports are to be held by the Court and that such passport(s) only be released upon further order of this Court.
Live With and Time
The child shall live with the mother.
The child shall spend time with the father at all such times as might be agreed in writing between the parties and, failing further or other agreement, as follows:
A. Until the Child commences prep or 1 February 2013:
Until the earlier of the child commencing preparatory school or 1 February 2013:
i)from 9:00 until 3.00pm on each of Tuesday and Thursday in each alternate week commencing Tuesday 19 April 2011; and
ii)from 5:00pm Friday until 5:00pm Sunday each alternate week commencing Thursday 14 April 2011.
B.From when the Child commences prep or 1 February 2013 until when the child commences Grade 2 or 1 February 2015:
From the earlier of the child commencing prep or 1 February 2013:
i)from the later of after school or 4.00pm on Thursday until the earlier of the commencement of school or 9.00am on the following Monday (or Tuesday if Monday is a public holiday or pupil-free day) each alternate week;
ii)For the first week of the June/July gazetted school holiday period; and
iii)For the first week of the September/October gazetted school holiday period; and
iv)For one week from 12:00 noon on New Year’s Day; and
v)For the last week of the Christmas School Vacation period (commencing and concluding on a Saturday).
C.From when the child commences Grade 2 or 1 February 2015:
From the earlier of the child commencing Grade 2 or 1 February 2015:
i)from after school Thursday until the commencement of school Tuesday each alternate week;
ii)For the first half of each gazetted school holiday period in 2015 and each alternate year thereafter and for the second half of each gazetted school holiday period in 2016 and each alternate year thereafter.
D. From the date of these Orders:
a) On the child’s birthday as follows:
i)In even numbered years from the earlier of 4.00pm or after school on the day before her birthday until the earlier of 9.00am or the commencement of school on her birthday;
ii)In odd numbered years from the earlier of 4.00pm or after school on her birthday until the earlier of 9.00am or the commencement of school on the day after her birthday;
iii)If the child’s birthday falls on a weekend from 12:00 noon until 6:00pm on the birthday and if her birthday falls on a day when, in accordance with these orders, the child would otherwise be spending time with the father, between those hours in the mother’s care.
b) On each of Mother’s Day with the mother and on Father’s Day with the father from 9:00am until 5:00pm.
c) From 2:00pm on Christmas Day until 2:00pm on Boxing Day in even numbered years and from 2:00pm on Christmas Eve until 2:00pm on Christmas Day in odd numbered years.
That the time the child is to spend with the father pursuant to these Orders be suspended during gazetted school holiday periods and the cycle shall recommence on the first weekend after school resumes.
The father is at liberty to contact the child by telephone not more than twice per week on days suitable to each but not before 8.30am and not after 7.00pm.
Drug testing
The father shall submit to random drug testing at his own expense, at such times and places as directed by the Independent Children’s Lawyer in writing, but being not more than six times per calendar year, until the child commences preparatory school or 1 February 2013, whichever first occurs.
The Independent Children’s Lawyer is discharged upon the expiration of the period specified in Order 15.
IT IS FURTHER ORDERED THAT:
Property
Pursuant to s 79 of the Act IT IS ORDERED as and by way of settlement of property that:
a.Each party shall retain the property of whatever type or description currently in their respective possession to the exclusion of any right, title, claim or interest by the other in respect of same.
b.The husband shall cause the company C Pty Ltd (ACN …) of which he is the sole director to be solely responsible for its debts and shall cause the company to indemnify the wife in respect of any debts owed by the company for which she is, or might be liable including, but not limited to, the debt owed by C Pty Ltd to the company M & Co.
c.The wife shall forthwith abandon any right, title, claim or interest in the said company, including abandoning any claim for any alleged wages or other sums alleged to be owing to her by the company.
IT IS FURTHER ORDERED THAT:
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym McLory & McLory is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8082 of 2008
| Ms McLory |
Applicant
And
| Mr McLory |
Respondent
REASONS FOR JUDGMENT
These are my reasons for judgment in the matter of McLory, file number BRC 8082 of 2008. V was born in February 2008. For almost the whole of her life, V’s parents have been embroiled in Family Law proceedings. V’s parents met in Country 1 whilst they were both working there in March 2004. The mother, who was born in the United Kingdom, but obtained Australian citizenship in 1995, subsequently left Country 1 and moved to Australia in late 2005.
The father, who was of Country 2 nationality, remained in Country 1 until about early 2007 when, after becoming engaged to the mother, having proposed to her over the internet in July 2006, the father immigrated to Brisbane and moved in with the mother. The parties married in July 2007 in Brisbane.
The parties separated in August 2008, when, it should be noted, V was only six months old. Both parties seek parenting orders in relation to V. The father also seeks property orders.
Background
The parties’ very short relationship and the history of their almost continual litigation since separation unfortunately needs to be set out in some detail. The application for parenting orders is marked by allegations of sexual abuse of V by her father. This will be addressed in detail later in these reasons. The mother has been V’s primary caregiver since the parties separated.
When they separated, the mother left the matrimonial home with V. She claims that she left the relationship because she:
…became so concerned for my safety.
On 3 September 2008, the mother took V to see the father. The father subsequently refused to return V to the mother’s care. The mother filed an application seeking an order that V be returned to her care and additionally, a “PACE order”.
The matter initially came before the Federal Magistrates Court. Coates FM ordered, on 9 September 2008, among other things, that V live with the mother and that both parents have equal shared parental responsibility for her. The Federal Magistrate also ordered that the father have unsupervised time with V and requested a family report to be completed by Mr P. The matter was listed for subsequent mention in November 2008.
Shortly after those orders issued, the father filed a Contravention Application asserting that the mother had failed to deliver V on Sunday, 25 September (it is to be noted about two weeks after the orders were made.) The mother accepted, during cross-examination by the father in this trial, that she did not deliver V for time with the father for a period of approximately eight weeks between 25 September 2008 and 10 November 2008.
The mother stated, during cross-examination by counsel for the Independent Children’s Lawyer, that she ceased contact with the father due to his behaviour when she attempted to drop V off to him. According to the mother, the father became abusive and:
…appeared to be quite considerably under the influence of marijuana.
The mother also cites material she found on the company computer as another motivation for her not allowing V to visit the father.
The mother annexed to her affidavit, filed 11 June 2010, various documents and conversations between the father and third parties which, the mother claims, pointed to the potential danger posed by the father to V. For instance, the mother highlights a document which seems to outline potential pornographic websites the father is looking to create including, for instance, one entitled “Daddy’s daughter”, which is described as:
…get an old geezer (50+) and a couple of young (18 – 19) girls and have them be a family. Alternatively, don’t try to convince anyone that there is any incest going on and simply focus on getting shoots of old guys with 18 – 19 year old girls.
The father filed another Contravention Application on 17 October 2008 again alleging that the mother failed to place V into the father’s care on 27, 28 and 30 September and the new dates for time in October. The mother claims she suspended contact between V and the father after observing the father “stoned” when she went to collect V from the father following visits and after reading a number of documents she located on the father’s computer. According to the mother she was concerned for V’s safety and decided to withhold V until the next mention date in the Federal Magistrates Court.
Mr P’s report was completed on 4 November 2008 and the matter again came before the Federal Magistrates Court with orders being made that time occur between the father and V. The time with the father was subsequently reinstated. Contact occurred between the father and V steadily between 11 November 2008 and 14 March 2009.
The mother took V to see Dr E at the N medical practice on 11 March 2009 following a visit with the father on 10 March 2009. The mother observed a cut to the outside of V’s eye and bruising around both eyes. The father allegedly told the mother that V had “face planted”. The mother told Dr E that she had concerns regarding the injuries sustained by V. According to the mother, Dr E stated that the injuries were not consistent with a “face plant” and the doctor “of his own volition” contacted the Department of Communities (Child Safety) (the Department), (having first discussed the matter with the SCAN team at Hospital 1).
The father put the doctor’s notes to the mother during cross-examination (Exhibit F7). The doctor had recorded, on 11 March 2009:
…maternal concern regarding pattern of recurrent facial injury – about six times since visiting her father from Nov ‘08.
A report from the Department (Exhibit F6) records the mother informing the Department on 13 March 2009 that V had suffered seven “notable facial injur[ies]…[whilst] in her father’s care in three months”. That is denied by the father. There is no corroborative evidence in support of it. No doctor’s visits relating to any such injuries apparently occurred.
Despite her and allegedly Dr E’s “concerns” surrounding V’s safety the mother provided V to the father on 12 March 2009. The mother claims that the father’s behaviour, when she dropped V off on that day, gave her cause to be “afraid for [her] own safety” and she subsequently suspended unsupervised contact (again).
After a period of no contact (again) between 13 March and 29 April 2009, the father commenced supervised time with the child on 26 April 2009 at the G Children’s Contact Centre.
The mother asserted, during cross-examination by the father, that during the period of no contact between March and April 2009, her solicitors had offered supervised contact with V to the father but he had refused that offer. The father claimed that this was “nonsense” and put to the mother during cross-examination that he in fact had proposed a means of supervised contact whereby a qualified nanny would oversee any contact between the father and V.
The mother’s initial account was patently incorrect. She accepted, when cross-examined by the father, that he had made such a proposal but it transpires that she had refused to accept it. Her reason was, she said, that the nanny proposed by him was 19 years of age and was “not mature enough” to supervise time between the father and V. No other reason was given by her for the refusal to comply with the father’s request.
On 4 or 5 May 2009, the mother was informed by the G Contact Centre staff that the father had administered a substance “Camph” to V. The substance is apparently some form of homeopathy or herbal remedy or some such.
The matter came before me on 27 July 2009 for “the first day of trial”. I ordered, among other things, that the father have unsupervised time with V between 9.30 am and 1.30 pm on Tuesday, Thursday and Saturday of each alternate week and from 9.30 am until 1.30 pm on Tuesday and Saturday every other week. The matter was listed for further mention in December 2009.
The mother claims that:
In April 2009 [V] commenced performing oral sex and other sexualised behaviour on her teddies and dolls. The sexualised behaviours were also displayed within one or two days of spending time with the father…
The sexualised behaviour occurred almost weekly between April and June before subsiding to approximately once every two weeks. In or about October 2009, the sexualised behaviours became more frequent again. The behaviours were not only sexual acts being performed on [V’s] dolls but in November 2009 she commenced attempting to insert items into her vagina. That included keys and her toothbrush.
It needs to be observed that these observations of so-called sexualised behaviour are not corroborated by any other evidence called in the trial. No other person, it would seem, has had the opportunity to observe behaviours which they would describe as “sexualised”. In particular, as will be seen later in these reasons, the supervisor of the contact centre (known in these proceedings as “[Ms S]”) had the opportunity to observe V playing both by herself and with her father, including with dolls and teddies and never observed any behaviour that would fit that description.
The mother also claimed that:
On the last unsupervised visit prior to my ceasing time in 2009 V returned to my care (again) displaying sexualised behaviour that was inconsistent with her age. I observed V simulating oral sex with her dolls.
The matter came before me again on 10 December 2009 and was adjourned to my callover on 18 December 2009. On 12 December 2009, the mother withheld V on the purported basis of recommendations made in a family report prepared by Ms O, dated 30 November 2009. The father filed another Contravention Application on 15 December 2009 and that Application was adjourned for a hearing on 23 March 2010. The matter was listed for final hearing for three days commencing 23 June 2010. On 15 December 2009 I also made orders for the father to have unsupervised time with V on Christmas Day and her birthday.
By the following time on Christmas Day, the mother claimed (again) that V had displayed “sexualised behaviour”. The mother said that V had “simulated sexual intercourse with her doll.” Following the ordered birthday time, a further allegation was made. The mother deposes:
Following the birthday time, I observed [V] attempting to insert items such as keys into her genitals. Prior to his unsupervised visits that behaviour had ceased.
Details of those allegations will be referred to in more detail later in these reasons. The mother claims that V suffered nightmares following almost every visit from her father. She kept a diary, apparently, recording V’s nightmares. From about March until June 2010 that diary reveals that V suffered nightmares, she says, on average every two to three days. When the matter came back before me on 23 March 2010, orders were made which included an additional visit between the father and V, every alternate Thursday, between 9.30 am and 1.30 pm. At that time there were only 12 weeks between the date of the order and the final hearing.
The mother alleges that on 25 March 2010 V returned from an unsupervised visit with the father with a split lip. According to the mother, V said:
Daddy smack, daddy cuddle, daddy smack [V].
On 26 March 2010, V allegedly said, whilst pointing to her lip:
Sore. Daddy did it.
The mother also claims that on 23 May 2010, the father broke into her home and went through her financial records, ostensively for the purpose of determining her financial status and thus, her ability to maintain Legal Aid funding. I should mention, at this point, that the father denies in each and every respect, any untoward behaviour toward V, whether asserted to be of a sexual nature or inappropriate physical punishment or behaviour. He also denies the incident alleged by the mother, with respect to the breaking into of her home.
The matter proceeded to trial on 23 June 2010. The mother was represented. The father was then and always has been, self-represented. Unfortunately, it became apparent on the afternoon of that day, that the then counsel for the Independent Children’s Lawyer had previously seen the father in her capacity as a volunteer at a local community legal centre. The father had approached counsel during the lunch break. Counsel did not recall meeting the father but subsequently made inquires of that legal centre, which confirmed that she had, in fact, dealt with the father’s file. Appropriately, then, but unfortunately for the continuation of the proceedings, it was appropriate for counsel to seek leave to withdraw and such leave was granted.
Counsel’s instructing solicitor was questioned as to the prospect of continuing with the trial at that time but requested an adjournment, so as to enable a different counsel to be briefed. The history of this matter to which I have just made reference and the fact that this matter is not without its complexities, persuaded me in the ultimate, that that application should be granted for the purpose of the Independent Children’s Lawyer instructing new counsel. The matter was then, unfortunately, adjourned to 30 August 2010. The trial proceeded on 30 and 31 August and 1 September 2010, being the first dates available for the three-day hearing, after 23 Jun 2010.
Despite ongoing attempts to have the trial proceed with expedition, it became apparent that the matter would not conclude on 1 September 2010. New dates were allocated but, unfortunately, the new date fell in the middle of the Brisbane floods, at a time when the Court was closed. Equally, then, unfortunately, the first available date for hearing the matter, thereafter, was 18 March 2011. The trial then proceeded on that day and these reasons are being delivered as quickly as possible thereafter and in light of the history of the matter earlier referred to.
At the conclusion of the trial on 18 March 2011, counsel for the Independent Children’s Lawyer requested further time to make submissions. I should add that this counsel was a different counsel to the counsel who had earlier conducted the trial and that was the basis for that request. The matter then concluded with submissions on 5 April 2011 and I have sought to deliver these reasons as soon as possible and for that reason, they are being delivered ex tempore.
On 1 September 2010, at the conclusion of the first part of the trial and having heard three days’ evidence in the matter, I made orders among others that; (a) the father spend time with V from 10 am Saturday until 5 pm Sunday each alternate weekend, commencing on 4 September and from 9.30 am to 2.30 pm on Tuesday, Thursday and Saturday each alternate week, commencing 7 September 2010 and from 9.30 am to 2.30 pm on a Wednesday each alternate week, commencing 15 September 2010. It might be observed that at that time V was about two and a half years old and the orders sought to have relatively frequent but relatively short periods of time between the father and her.
It will also be observed that the orders made at that time, which were made on an interim basis in the midst of a trial, might not appear, on their face, to have had sufficient regard to the concerns about risk outlined by the mother in the background earlier given. However, as will emerge later in these reasons, the trial took on a significantly different complexion, as a result of a change in the orders sought by the mother during the course of it.
Parties’ proposals
The mother seeks orders that (a) V live with her; (b) that she spend time with the father as agreed; (c) failing agreement, supervised for up to two hours each Saturday or Sunday at the G Children’s Contact Centre.
More specifically, the mother seeks orders that:
a)V live with her;
b)Spend time with the father as agreed;
c)Failing agreement, supervised for up to two hours each Saturday or Sunday at G Children’s Contact Centre (or other agreed Contact Centre);
d)Telephone contact between the father and V each Tuesday and Thursday between 6 – 6:30pm;
e)Time on special occasions;
f)Sole parent responsibility vested in the mother for all major, long-term decisions;
g)Drug prohibition on the father while spending time with V;
h)The father is not to medicate V unless the medication is prescribed by a qualified medical practitioner;
i)Each parent have access to records of relevant professional care providers;
j)Non-denigration orders;
k)These orders be reviewed after twelve months.
At the beginning of the second day of the trial (31 August 2010) the mother, through her counsel, sought to amend the orders she sought. In effect, the change mooted unsupervised time between the father and V overnight, commencing immediately from Friday 3 pm to Saturday 3 pm, every alternate week. From 9 am Saturday until 3 pm Sunday every other week, with time to increase gradually, culminating with V spending, essentially, the entire weekend with her father each alternate week, once she commenced grade one, at which time, half of the school holidays would also be included.
It will be appreciated that this change, not otherwise earlier indicated by the mother, marked a very significant departure from the orders initially sought by her, which contemplated only supervised time and contemplated that supervised time occurring at a contact centre and of two hours’ duration. The mother also amended her application so as to abandon her application for sole parental responsibility, seeking instead an order for equal shared parental responsibility. It will be appreciated that this, too, marks a significant departure from the orders originally sought by her.
The father’s proposals were contained in his amended response, filed 9 June 2010 and remained largely unchanged.
The father seeks orders that:
a)V live with him;
b)He have sole parental responsibility for the major long-term decisions regarding V’s care;
c)The mother have unsupervised, overnight contact with V each Tuesday, Thursday and Saturday;
d)The father however, proposes that time ought to change from V’s third birthday (which has passed – being in February 2011) to overnight from Friday (6pm) to Sunday (5pm) each alternate weekend;
e)Two weeks of “block contact” with each parent each year and where the parents cannot agree, one week to the mother starting the first Monday of January each year and one week starting the last Monday of January each year to the Father;
f)Time on special occasions
g)Telephone contact between the mother and V at “all reasonable times”;
h)Changeover to occur at the H Police Station;
i)V is to be placed on the “Airport watch list” and V’s passport/s are to be held at the Registry until further order;
j)Each parent have access to records of relevant professional care providers;
k)Non-denigration orders.
The Independent Children’s Lawyer seeks orders that V remain living with the mother and suggests significant and substantial unsupervised contact with the father, but orders in that respect, are not otherwise specified. Oral submissions appeared to propose a regime similar to (or perhaps identical to) the mother’s proposals.
The Independent Children’s Lawyer also seeks an order that the father continue random drug tests and that the ICL remain in the matter for six to 12 months. The ICL also sought “a notation” that “the mother continues ongoing counselling”.
Applicable principles
I recently attempted to collate the principles relating to parenting proceedings in which there are allegations of abuse in the matter of Donaghey & Donaghey [2011] FamCA 13. I rely on the matters there discussed, in particular, at paragraphs 19 through 32, as being my understanding of the principles which bind me. In a similar vein, I attempted to set out my understanding of the binding of the principles applicable, more generally, to applications for parenting orders, in Hardie & Capris [2010] FamCA 1046. I particularly refer, in that respect, to paragraphs 44 through 58 of that judgment.
Allegations relating to abuse and visits with the father
The first interview between the mother and the Department occurred on 13 March 2009, over the phone. During that interview, the mother raised her concerns regarding “seven notable” facial injuries sustained by V whilst in her father’s care. At no point did the mother raise any concerns regarding sexual abuse of V. According to the mother, the first time she expressed any concerns regarding sexual abuse of V was about a month later, in April 2009. The mother claimed during cross-examination by the father that following the interview at the Department’s offices in April 2009 a “support worker” from the refuge at which the mother was staying (said to be, apparently, “a social worker”), who had attended the interview with the mother, observed the mother changing V’s nappy.
According to the mother, the social worker said nothing at that time but, again according to the mother, the following day she approached the mother and asked her if there was a possibility that V had been sexually abused. The mother asserts that the social worker, who had, according to her “quite a lot of experience in these matters”, wanted to approach the Department because she “felt [V] looked unusually stretched in the area between her vagina and her anus”. No affidavit has ever been filed from this person. No first-hand account of what was allegedly seen, or what was allegedly said, is recorded anywhere in any document, or any affidavit, other than by the mother.
Given the role that this alleged observation and this alleged conversation had in what the mother says were her concerns about sexual abuse at the hands of the father, I find the absence of evidence regarding the “social worker’s” statements and observations troubling and remarkable. Following the social worker’s observations, the mother took V to a general practitioner who had been recommended by “the social worker”. The mother stated during cross-examination by the father that the GP spoke with the Department and requested that she take V to Hospital 1. The mother took V to the SCAN team at Hospital 1 several days later.
The mother asserts that when she took V, the examination could not be completed because V was distressed. The mother did state, however, that the doctor who examined V said that “she wasn’t able to prove anything had occurred but she couldn’t rule it out”. Again, no affidavit filed by the mother, or for that matter, the Independent Children’s Lawyer, gives an account of that conversation. No account of that conversation appears in any document produced pursuant to a subpoena, nor does it otherwise form part of the evidence before me. Again, it is the mother’s (hearsay) account which is relied upon solely in order to found that statement.
The father raised an issue regarding the dates on which the mother took V to the GP, and subsequently Hospital 1. The mother says that occurred in March, although it needs to be said she appeared confused about the date. Exhibit F8 (notes from the Department) record V being seen by the SCAN team at Hospital 1 on 17 April 2009. The mother was adamant that she took V about a week after the first interview with the Department (i.e. March 2009). The mother suggested the discrepancy may be due to a mistake in the date of the first interview.
The father appears to assert that this discrepancy points to some form of dishonesty, or perhaps self-serving statement by the mother in respect of the allegations made by her. When the mother was subsequently cross-examined by the then-counsel for the Independent Children’s Lawyer, the mother asserted that she first spoke with the Department over the phone in March 2009. During that conversation, the Department asked that she attend an interview; the mother subsequently attended the interview in April 2009 with “the social worker”, who subsequently allegedly observed the allegedly stretched perineum.
The mother had previously taken V to a doctor to treat redness around her genitals and anus. The mother said to the single reporting expert psychiatrist, Dr V, that she had concerns that V had been sexually abused, but said nothing to the doctor; the doctor diagnosed the rash as thrush.
The mother has made a number of assertions regarding behaviour, allegedly demonstrated by V, which the mother describes as “sexualised”. I repeat, her evidence, or more accurately her description, is the only evidence before the Court evidencing any such allegation. For instance, the mother asserts in her affidavit filed 11 June 2010:
In April 2009, [V] commenced performing oral sex and other sexualised behaviour on her teddies and dolls. These sexualised behaviours were always displayed within one or two days of spending time with her father…the sexualised behaviour occurred almost weekly between April and June before subsiding to approximately once every two weeks. In or about October 2009, these sexualised behaviours became more frequent again. The behaviours were not only sexual acts being performed on V’s dolls, but in November 2009 she commenced attempting to insert items into her vagina. That included keys and her toothbrush.
The mother also claimed that:
On the last unsupervised visit prior to my ceasing time in December 2009, [V] returned to my care (again) displaying sexualised behaviour that was inconsistent with her age. I observed [V] simulating oral sex with her dolls.
Following contact with her father on Christmas Day, the mother claims V displayed “sexualised behaviour”. She says:
After the Christmas visit, [V] simulated sexual intercourse with her doll. Following the birthday time, I observed [V] attempting to insert items such as keys into her genitals. Prior to these unsupervised visits that behaviour had ceased.
The mother reports V saying on 25 March 2010 (following time with the father):
Was Daddy, [V], yellow knickers.
And the following day:
Shower Daddy, washed Daddy’s bottom.
The mother was unsure if this meant that V showered in her knickers or put them on afterwards. The mother interpreted the latter comment to mean a disclosure that V had washed the father:
Inclusive of his bottom. Given her oversexualised behaviours which have continued since the father’s time became unsupervised – supervised again in March 2010.
The mother accepted during cross-examination by the father that she had prompted that statement by V. The mother said that she had asked V, “Does Daddy touch [V’s] bum with his bum?” to which V replied, “Yes, Daddy touch with bum, change bum.” The mother claims that:
Throughout February to early April 2010 [V’s] oversexualised behaviours recommenced. In early February 2010, [V] simulated sexual intercourse with her doll.
In the mother’s affidavit, filed 11 June 2010, she lists behaviours of V’s which she considers to be sexualised. The mother claims that:
From approximately mid-April through to 3 May 2010, [V] did not simulate any sexual activity, nor did she attempt to insert any items in her vagina. That re-occurred on 3 May 2010. At that time [V] was still suffering from ongoing nightmares and disclosing to me that she did not wish to spend any time with her father.
On 7 May 2010, the mother took V to her local GP, Dr Q, to whom she disclosed:
[V’s] ongoing nightmares, attempts to insert items into her vagina, and simulated sexual activity.
According to the mother, the doctor was concerned at these “disclosures”, and “thought it necessary to notify the Department of Child Safety”. The mother states that the doctor requested that she “also contact the Department, (which [she] did)”. The Department referred the matter to the police, and she subsequently participated in an interview with the police. The Child Protection Unit allegedly informed the mother that “prolonged periods” of “exploring one’s genitals” in a child of V’s age was “abnormal”.
It might be observed that, to the extent that those comments were made by officers within the Child Protection Unit, they could only have been relying upon statements by the mother of what the mother observed, and statements by the mother which suggested that there were “prolonged periods” of the child exploring her genitals. The mother claims that she has been informed:
By various third parties, including counsellors and my general practitioner that it is likely that some form of sexual abuse has occurred in the father’s household. I have always been guided by these experts or medical practitioners, as they deal with these types of issues on a day-to-day basis. In the event of there being no sexual abuse in the father’s household, I maintain my level of concern as to his ongoing ability to spend unsupervised time with [V]. If she has not been sexually abused, I believe that she has witnessed various sexual activities, or perhaps seen those behaviours carried out in the father’s pornography.
Again, it is necessary to observe that, leaving aside the “social worker” earlier referred to, it is difficult to see what advice has been provided by whom to the mother to suggest that sexual abuse has occurred. Secondly, any such “advice” that has been provided by “various [unnamed] third parties” can only, on the mother’s account, have been provided as a result of information conveyed to those third parties by the mother. There is no suggestion anywhere in the material that any person other than the mother has observed behaviours of the type she describes, that have caused them (as distinct from the mother) any particular concerns about V being sexually abused.
During cross-examination by the father, the mother particularised behaviours which she had observed in V that she categorised as “sexualised”. Such behaviours include:
…simulating oral sex with her toys…she would have a toy and she would put her face into its groin, she would be licking and moaning, at one point rubbing as well.
The mother said she discussed these behaviours with both the GP and the Department, both of whom stated that such behaviour was unusual. I consider that the mother’s description, insofar as it particularised her observations, is either untrue or is likely to be a very significant exaggeration.
I had the opportunity to observe both parties, both during the course of the trial over a considerable period of time, and during the earlier mentions with respect to this matter as it progressed to a final hearing. As will emerge, I accept the opinion of Dr V of the respective personality of each of the parties as being entirely consistent with my observations and impression gained during the course of this matter. Moreover, such concerns as I have about the extent to which the mother has, either in a self-serving way, or in a conscious way, exaggerated her accounts of what she has observed on the part of V, is reinforced by reference to the events which occurred during the course of the first part of the final hearing – the mother’s changed position.
As earlier noted the mother, during the course of the trial, amended her application to include regular unsupervised time between V and the father. When explaining why she had amended her orders to include overnight time between the father and V, she stated that she had seen documents subpoenaed from the Department. Those documents are Exhibit F9. I asked the mother to mark on that exhibit with a post-it note the content which had given her cause to reconsider her approach. The material marked by the mother was as follows:
My assessment of the notified concerns is that they are “unsubstantiated – and that [V] is a child not in need of protection” of the Department of Communities (Child Safety)…insufficient evidence of harm or unacceptable risk of harm is available to Child Safety at this time to establish harm, or unacceptable risk of harm…”.
The mother also marked a report from the Queensland Police Service (in Exhibit F5), and in particular an entry on 22 May 2010 which states:
Narrative:
As per supplementary 21/5/2010, the offence of indecent treatment is unsubstantiated, and there are significant concerns that the mother is causing emotional trauma to the child. This matter has been referred to SCAN, and Redland’s Department of Child Safety for their attention. It is highly doubtful that any offence occurred, and the indecent treatment of the child unfounded.
PAC notice:
Supplementing officer requests this report be changed to emotional abuse of children with the subject person being (the mother).
[emphasis added in each case]When I asked why these reports caused the mother to amend her orders and include (for the first time) overnight time between the father and V, the mother replied:
It’s a combination of two factors from there. One was the “unsubstantiated” part, that I think seeing it there meant that somebody uninvolved had looked – done their job – and I have to trust their professional judgment…but the other part that probably was the stronger, if anything, for me was the thought of [V] being traumatised by keeping this going; I just want it over.
The mother reiterated that it was the comments within the documents relating to emotional harm being done to V that, for her, “struck strongest”. It is also significant that the mother gave evidence that the day care centre which V attends has not reported any behaviour which they would describe as “sexualised” behaviour on V’s part. The mother’s change of position is plainly a strong pointer to the assessment by this Court of any risk. I asked the mother whether she believed that the father “was capable of doing evil sexual things to his daughter…” to which the mother replied, “I don’t know.” I subsequently asked the mother if she believed that the father had done “something sexually improper to his daughter”, to which the mother replied, “I don’t know; maybe.”
The mother was similarly, apparently, unsure in her belief as to whether or not the father would allow V to be subject to sexually inappropriate treatment at the hands of someone else. These questions occurred on the second day of trial, that is, these questions and their answers occurred prior to the amendment by the mother of the orders she was seeking. That amendment occurred the following day. Despite the mother’s overt equivocation, I, as will emerge, do not consider that the mother genuinely believes that the father has, or is likely to, sexually abuse his daughter. The same applies to her asserted belief about V being at risk of physical harm in the care of the father.
Dr V said, both in his report and orally in the witness box, that the mother’s vulnerable personality made her more susceptible to being influenced by third parties. Dr V said that the mother had alluded to a “social worker” who had first “put the idea into her head that the child had been sexually abused”. In his report, dated 10 December 2009, Dr V said:
I note the mother’s account of her concern regarding possible sexual abuse of [V] by her father. I note that despite her concerns about this, she is not raising any objection to [V] continuing to see her father, which suggests that she does not have a firm belief about this. What is not clear is the extent to which her concerns about sexual abuse have stemmed from the influence of third parties, a situation that is not uncommon in the Family Court.
Dr V said in oral evidence which I consider to be important:
Once an idea has been put into a mother’s head that the child has been sexually abused, they get preoccupied about it, look for signs of it, and to some extent that is normal. If somebody who claims to be a qualified social worker and that they have an expertise tells you that the child has been sexually abused in their view, then you will be preoccupied with it and you will look for signs and sometimes question the child inappropriately about it, and moreover make from what the child says evidence of sexual abuse, whether or not the child actually said something. People can invent what they claim the child said…”
Dr V said that having observed and listened to the mother, and having read the collateral documentation referred to in his report, he would view the mother’s complaints to the department and the police in that context. Dr V also noted that when he saw the mother:
She told me about what had happened with the social worker, but she wasn’t maintaining that sexual abuse had occurred. She was – I mean, well, she did say she has concerns about it but she wasn’t opposing contact, which you would think she would if she firmly believed sexual abuse had occurred.
I sought Dr V’s opinion as to the possibility of a lay person (i.e. a person other than a trained medical practitioner) being able to observe, as alleged, a stretched perineum so as to conclude that a child of that age had been sexually abused. Dr V stated that:
I don’t think a layperson would really have any intimate knowledge of the anatomy to make such an assumption.
According to Dr V, such an observation and conclusions should (or could) come only from a specialist paediatrician. There is certainly no evidence before me that the alleged “social worker” had any medical expertise, let alone any specialist expertise that would allow her to arrive at the conclusion which she did. I would respectfully comment that the giving of such opinions by a person unqualified to give them is a dangerous and regrettable thing to occur.
And if indeed those things were said as alleged by the mother, I completely agree with the opinion of Dr V that any such “evidence” should come only from a specialist paediatrician, specifically trained and with significant expertise to make observations of the type there described. I am certainly not prepared to attach weight to the (hearsay) account of an unnamed person with unspecified qualifications, said (hearsay) to be “a social worker”, giving an account of what was allegedly observed, and drawing a conclusion there from.
Ms O’s report, “[Ms S’s]” evidence, and Dr V’s report
(a) Ms O’s report.
Ms O completed a family report on 30 November 2009, following an order made by me on 27 July 2009. Ms O made a number of observations regarding the father including that:
a)The father ‘emanated a sense of defiant self-confidence and superiority’;
b)There was a ‘strong subtext of anxiety and tenseness evident in his rigid physical composure, minimalistic and regimented responses to questions and shallow expressions of congeniality’;
c)The father ‘presented with an air of intellectual superiority and consequently it seemed very important to him to test the report writer’s intellectualism as well...’;
d)The father ‘was devoid of emotional expression’;
e)The father ‘built a narrative that suggested that he consciously chose [Ms McLory] as a partner because he believed she had many of the attributes he valued for a potential mate/someone to mother his child’;
Ms O also made several observations of the mother, including:
a)The mother ‘presented as highly intelligent, introverted in character and amiable’;
b)‘In general [the mother] presented as if in shock – as if she is still bewildered by her experience with [the father]. With further analysis it seems likely that [the mother] may be showing signs of trauma either as a traumatic stress or as an adjustment disorder…’;
c)‘Evidence suggesting she is suffering from some type of trauma was in her overall demeanour as if she was in a daze or numb a lot of the time…’.
Ms O also made observations of the relationship between V and her parents.
V and her father
V and the father took part in two, one hour long supervised visits.
Ms O reports that ‘[w]ithin minutes of the first observation abnormalities in interaction between [the father] and [V] were evident’.
Ms O also observed the following in relation to the father:
a)‘From the commencement of their observation [the father’s] voice was flat in affect/expressionless. As the observation progressed [the father’s] voice tone and facial expressions seemed artificial and his demeanour in general was constrained, as if he was having to put in a lot of effort to finding interacting with [V] interesting. It was over ten minutes before [the father] smiled at [V] and even this smile seemed constrained’;
b)‘the most remarkable feature of [the father’s] interaction was in his lack of engagement with [V] in both his communication with her and capacity to engage in play with her’;
c)‘There was no free flowing communication between them nor did [the father] show any capacity to track [V’s] play and engage with her according to her activity…’;
d)‘He watched rather than engaged in play with [V], he tended to watch the activity she was doing rather than seek eye contact with her’;
e)‘Another significant feature was that [the father] did not often address [V] by her name and mostly addressed her in a depersonalised manner. It was fifteen minutes into the observation before he said her name and then soon after that when instructing her to put a toy away he say “it puts it away”. The only other time her (sic) referred to her was by “miss” spoken in a directive tone such as “No, no miss”;
f)Ms O also stated that ‘the interaction between [V] and the father was…devoid of any physical affection…just as significant was that [V] did not seek out any nurture from her father during their time together…’;
g)During the second observation, Ms O stated that ‘[the father] called [V] by her name more, he hugged her when she arrived, sought out eye contact with her at times and once ruffled her hair affectionately’;
h)Ms O did however note that during the second observation, V ‘did not hug [the father] back and nor did she seek him out for any nurturance or physical affection…At the closing of the observation, [the father] asked [V] for a hug but instead she pushed her chair in and began to walk away until [the father] again asked her for a hug and told her to hug him. [V] briefly put her head on his shoulder but kept her arms by her sides’.
Following the two observations which founded the report, Ms O evaluated both parents. In relation to the father, Ms O stated that he:
…has the hallmark features of someone with a narcissistic personality disorder.
Whilst recording that she was not purporting to make a diagnosis, Ms O went on to say that:
It is my opinion that [the father’s] narcissistic qualities interfere with his parenting capacity.
According to Ms O:
It appears that [the father] does not sufficiently recognise or identify with other people’s feelings or needs, and thus lacks empathy which is critical in parenting a young child, for the child to develop senses of trust, self-confidence, and security.
Ms O concluded that:
Overwhelming (sic) [the father] shows an inability to parent [V] in a manner that could facilitate a secure attachment between them. In general, there was an absence of nurturing support from [the father], demonstrated by the lack of physical affection, parental tracking, and capacity to anticipate the child’s needs and actions.
Ms O’s observations in relation to the mother are brief in comparison to those made in relation to the father. She concluded that the mother’s:
…parenting capacity was observed to be good. During her interview she was child-focused in terms of her ability to focus her discussions on [V] rather than the acrimony between herself and the father, and was observed to be nurturing and responsive to [V]…
Ms O subsequently recommended that if the Court determined that contact with the father would be in V’s best interests, such contact ought to be supervised and limited to once per week. Ms O also proposed quarterly reviews to determine the quality of the relationship between the father and V, and that the father, if he is to spend time with V, ought be subject to random drug testing.
(b) “[Ms S’s]” Evidence
Ms S is the manager of the contact centre at which the father and V attended. It will be remembered that during the time when supervised time occurred at that contact centre V was very young. It will also be recalled that time between the father and V at that contact centre had occurred in circumstances where the parents had separated when V was a tiny baby, and where time between the father and V had been interrupted by the mother in the manner earlier referred to.
Ms S gave evidence regarding the relationship observed by her between the father and V. She also gave evidence of V’s behaviours. Ms S’s evidence sits in marked and stark contrast to the report of Ms O. In relation to the relationship between the father and V, Ms S said it was “very good”. When V arrived, the father would be waiting in the room for her and he would:
…sing this little song “Baby [V]” which would comfort her as she walked towards him, or make her feel comfortable…
Ms S also stated that:
They spent very positive time together…I think they have got a really lovely relationship. [V] was quite comfortable with dad, lots of giggles.
Not only are the observations themselves markedly different to those observed by Ms O, but the very tone of the interaction between the father and V sits in marked contrast to the tone of the observations referred to in Ms O’s report. The only issue flagged as a concern by Ms S was the father’s administration of Camph to V as earlier referred to, but Ms S stated that, once chided about it, “it never happened again”. Significantly, Ms S stated that whilst V played with dolls at the contact centre, Ms S never observed V simulating sex with her dolls, nor did she display any behaviour that caused Ms S any concerns whatsoever, or any behaviour that she would describe as “sexualised”.
(c) Dr V’s report
During oral evidence, Dr V asserted that, in his opinion, there was some test/retest reliability (or “convergence”) between his observations and those of Ms O in relation to the father. Dr V stated that:
[Ms O’s] evaluation of the father, I think, is broadly correct. That we are both seeing the same things. There is a narcissism. I think there is more to him than just narcissism, but that is something that struck her very clearly. So there is good test-retest reliability there in that sense.
In oral evidence, Dr V was clear that in his opinion Ms O had “underestimated the degree of personality pathology in the mother”. Significantly, Dr V felt that Ms O, in coming to the conclusion that the mother had suffered trauma, had applied “top-down reasoning”, that is, Ms O:
Says that the mother presents as traumatised, and that must mean that she has been traumatised. You can make an inference, if you knew something has happened, that a persons reaction is a result of that, but it is unscientific to assume that a particular presentation means that an event has occurred.
According to Dr V:
The mother has very significant obsessional traits, and like the father, she also has narcissistic traits in that she tends to see issues very much from her own perspective. And you could infer from some of the reported behaviour – arguably, I am commenting on fact – that she seeks a very enmeshed relationship with the child.
In relation to the father, Dr V stated during oral evidence that:
He has some personality strengths…he has some capacity for self-reflection, some capacity for self-criticism. He is able to make changes in his life in accordance to needs, such as – if it is correct – that he has given up the drugs, so he is not entirely narcissistic.
In relation to both parents, Dr V stated:
The father has narcissistic and obsessional traits. The mother has both. I think the mother has more obsessional than narcissistic traits, and the father has more narcissistic than obsessional traits.
Dr V also addressed further what he saw as the mother seeking an enmeshed relationship with V:
The impression one gets from reading the material is that the mother seeks this highly enmeshed relationship with the child, and – you know – her continued need to breastfeed the child, given the circumstances, is an example of that, and one could infer that she seeks to exclude the father from that.
Dr V agreed that the mother’s “vulnerable personality” made her more likely to be led by third parties such as “[child protection lobby group]” and Ms C (the “social worker” earlier referred to). Dr V also stated several times that he was surprised that in April 2010, the mother was still expressing the belief that V had been sexually abused because, according to Dr V, when he had interviewed the mother:
Whether the child had been sexually abused was a hypothesis in her mind rather than a firm belief…and the hypothesis seemed to have been planted by somebody else or given genesis in somebody’s statement…
Dr V’s report describes the father as follows:
a)‘[the father] was pleasant and co-operative. I note that he presented as a fairly earnest man and was very healthy looking’;
b)‘There was no evidence of any depression or anxiety’;
c)‘[the father] warmed up considerably when talking about his daughter’;
d)‘the father emerges as having significant narcissistic traits and perhaps obsessional traits. The impression one gets is of a person with a relatively poorly developed sense of identity and self…I note however that he has some capacity for self-reflection’;
e)‘if it is the case that [the father] has suffered episodes of depressive illness in the past, then clearly it is in remission as judged by the current mental state’.
Dr V described the mother as follows:
a)‘[the mother] was very pleasant and co-operative’;
b)‘…[the mother]…in giving her account there were frequent asides relating to themes critical of [the father’s] behaviour’;
c)‘…there was no evidence of depression or anxiety’;
d)‘…[the mother’s] thought content…was focussed on negative aspects of [the father]’;
e)‘with respect to the mother, it is also probable that she suffered some sort of depressive condition, whether a primary mood disorder or Adjustment Disorder following the birth of her child and the previous miscarriage. If this is the case, then it is currently in remission’;
f)‘the mother’s presentation and history is also suggestive of personality vulnerability. What emerges particularly strongly is the obsessionality with a need for control but as with the father, she has narcissistic traits and tends to see the situation entirely from her own perspective’;
g)‘[the mother] is entirely negative about [the father] and returns to this theme several times in the interview’;
h)‘I note the mother’s account of her concern regarding possible sexual abuse of [V] by her father. I note that despite her concerns about this, she is not raising any objection to [V] continuing to see her father which suggests that she does not have a firm belief about this. What is not clear is the extent to which her concerns about sexual abuse have stemmed from the influence of third parties, a situation that is not uncommon in the Family Court’;
i)‘The data indicates that the mother seeks a highly enmeshed relationship with the child and it could be inferred the she has sought to exclude the father from having a meaningful relationship with the child. Continuing to breastfeed the child at this age in the circumstances suggests both a need for enmeshment and a ploy to restrict contact’;
j)‘I note however that the mother in her interview with me is not disputing that there should be contact between the child and the father. I assume that this means that she is no longer alleging that sexual abuse has occurred or that there is a risk of this’;
k)‘there is no psychiatric reason why the mother should not remain the primary caregiver at the present time given the age of the child. The only issue is the extent to which she encourages a relationship of the child with the father and does not obstruct contact’.
In relation to both the mother and the father, Dr V said:
a) It does not appear that either of the two parties interviewed suffers from any major mental disorder such as organic mental states, psychosis, current mood disorder or anxiety disorder;
b) Both parties seem very focused on their own needs, as against the child’s needs, and seem to be in a competitive situation with respect of the child;
c) The personality issues are not such that would necessarily impact on their capacity to be effective parents.
I accept those opinions of Dr V. I regard Dr V’s evidence as very helpful generally, and also very important. His observations very much accord with my own observations and impressions during the trial, and in appearances leading up to the trial. I specifically agree with Dr V that Ms O has applied reasoning of the type he describes. I consider her overall evaluation of the mother’s personality and capacities significantly less reliable than Dr V’s.
Moreover, I asked Ms O a number of questions relating to the collateral information to which she had regard in forming her opinions. I consider that her opinions are significantly less informed by important collateral information relating to the nature of the mother’s personality, the father’s personality, and the interrelationship between the father and the child. I consider that her reference in the report to examples of the father’s behaviour take little account of the fact that the father had a limited opportunity for a relationship with the child, and the child had been exposed to the mother’s emotions relating from her alleged concerns about the behaviour of the father towards the child.
I accept the evidence of Ms S. Again, I consider her evidence to be important and helpful in this case. I consider it more objective, in relation to observations made of the father and the interrelationship between the father and V, than the observations of Ms O. I turn now to consider the statutory considerations, and findings about best interests emanating from them.
Section 60CC(2)(a) – Meaningful Relationship
It would clearly be beneficial to V to have a meaningful relationship with each of her parents. The mother would not, during oral evidence, state whether or not V loved her father. I find this remarkable of itself. The mother said that she “could not comment on the emotion of others”, as a reason for not being able to provide such an opinion. I consider that the mother’s evidence in that respect is indicative of the narcissistic and obsessional person described by Dr V in his report. The mother did assert that she felt that whatever V’s emotions were toward her father, “they were mixed”. She said that there were times when V was excited and happy to see her father, and there were other times when V was reluctant to go with her father.
I consider the mother’s evidence is coloured by her own enmeshed relationship with V, and her feelings towards the father. I consider she projects her own feelings about the father on to V. The evidence of Ms S, an unrelated third party, clearly depicts a loving, appropriate, and potentially mutually beneficial relationship between the father and V. I consider it in V’s best interests for her to have a meaningful relationship with her father as well as her mother, marked by time with the two of them.
Section 60CC(2)(b) – Protection
The mother has previously demonstrated the ability to protect V from harm. The mother has repeatedly claimed that the father has been physically abusive towards her, and during oral evidence the mother stated the father had a tendency towards violence and emotional abuse, and that violence towards V was a possibility. I can see very little foundation for those assertions by the mother. I consider her evidence generally unreliable in that respect. I consider that her evidence in that respect has been exaggerated, and coloured by her desire to limit the time between V and the father. In saying that, I do not particularly impute to her some malevolent motives, rather I consider that more likely to be a manifestation of a desire for an enmeshed relationship of the type referred to by Dr V.
Nevertheless, it is a matter of concern. A protection order was obtained by the mother against the father around the time of separation, was effective for two years and will expire in June 2011. The Independent Children’s Lawyer stated in written submissions that:
The father did not challenge the mother in cross-examination on whether she had made allegations of emotional, financial abuse, and sarcasm, nor did he deny those forms of abuse.
Leaving aside the appropriateness of the application of “the rule in Browne v Dunn” in an affidavit court, and by reference to a self-represented litigant, I do not consider that the submission is supported by the evidence or events. The Independent Children’s Lawyer refers to evidence on day 2 in support of the assertion. I, in fact, had raised with the husband his emphasis on questioning the mother about alleged physical abuse, and had informed the father that I would treat any form of abuse as serious and significant. The father subsequently raised emotional abuse allegations with the mother during her cross-examination, for example on day 2 the father put the following to the mother:
Regarding the emotional abuse aspect of that police complaint, [Ms McLory’s first name], may this response understandably be reflective of your emotional state post-separation rather than actual abuse on my part towards you?
The mother responded:
I don’t remember emotional abuse ever actually being discussed with them, so I can’t answer that.
Similarly, the father directly put to the mother that a specific allegation of verbal abuse was untrue, to which the mother replied, “That is perfectly true”.
The mother listed a number of issues she had with the father’s ability to care for V. That list included, among others, the father being manipulative and verbally abusive. The father put to the mother that, “all of the items on that list are untrue”, to which the mother replied, “they are all true”. Clearly, then, the father did, in fact, challenge the mother in cross-examination regarding her allegations of emotional abuse, and in doing so he also denied their truth.
The mother was seeing Ms G, a psychologist, prior to and following her separation from the father. Ms G’s notes became exhibit F2. Those notes reveal that the mother had stated to her psychologist that (as at 28 August 2008) “there had been no physical abuse (at the hands of the father)”.
I asked the mother why she had not told Ms G that there had been physical abuse if, as she claimed, there had been. The mother replied that she was “ashamed and embarrassed and frightened”. Whilst shame, embarrassment, and fear are, of course, very common reasons for women not reporting incidents of abuse, the difficulty with the assertion by the mother is that she was, in fact, willing to talk about other forms of abuse – the mother felt unrestrained, and it appears perfectly willing to discuss with Ms G other forms of abuse, including emotional and financial abuse. I find the mother’s explanation for the absence of complaints about physical abuse, if it occurred as she alleges, as being unsatisfying. I don’t accept it. The mother also failed to disclose any physical abuse when she attended at the N medical practice in August 2008. The notes from that attendance on 29 August 2008 record that the mother was “not particularly afraid re safety”. The mother also raised concerns about various injuries suffered by V whilst in the father’s care.
The mother took V to see Dr E at the N medical practice on 11 March 2009 following a visit with the father on 10 March 2009. The mother observed a cut to the outside of V’s eye, and bruising around both eyes – this is the so-called “face planting” incident earlier referred to. The mother told Dr E that she had concerns regarding the injuries. According to the mother, Dr E stated the injuries were not consistent with a face plant, and that the doctor “of his own volition” contacted the Department of Child Safety (having first discussed the matter with the SCAN team at Hospital 1).
However, the father put the doctor’s notes to the mother during cross-examination (Exhibit F7). The doctor has recorded, on 11 March 2009:
…maternal concern regarding pattern of recurrent facial injury – about six times since visiting her father from November ’08.
In a report of the Department (Exhibit F6), the mother informed the Department on 13 March 2009 that V had suffered seven:
…notable facial injuries… whilst in her father’s care in three months.
There is evidence of the mother’s assertions about injury. There is scant evidence of actual injury or physical abuse. I consider that the mother has exaggerated both any “injuries” and her belief about the possibility of physical harm to V at the hands of her father.
As one example, it seems to me significant that the doctor, rather than recording injuries and the potential cause (as might be expected in a case where physical abuse of a child is being alleged), in fact records “maternal concerns” and, so too, do the Department notes. The mother has also expressed concerns about the father’s drug use. The father has been a long-term user of marijuana and other illicit drugs. According to the father, he last used cocaine in 2005 in Country 1.
The mother has admitted to previously consuming a small quantity of marijuana, but no issues have arisen in relation to any potential continued use by her of that drug. Dr V was of the opinion the father was a recreational user, as opposed to a dependent user of drugs, and was thus less susceptible to relapsing. Nonetheless, the doctor did identify certain risk factors for the father which could lead to recidivism, including, for instance:
…if he develops a depressive illness or something goes wrong, he is unable to have contact with his daughter, those sorts of things, or he gets into company where drug abuse is common, or part of the culture.
Dr V thought it important that the father be abstinent from drugs, and when asked by counsel for the mother why he felt it was important, the doctor replied:
[the father] has had significant problems with drug abuse in the past. It seems like drug abuse was a significant problem in the relationship. His ex partner reports that it significantly affected his function. Now – and moreover, it is a big issue for the ex wife. So if he is unable to abstain from drugs in order to facilitate contact with his daughter, that would be kind of indication of a very severe narcissism.
I should mention in that context, that the unfortunately protracted nature of these hearings, has in fact afforded the opportunity for the father to undertake drug testing at the request of the Independent Children’s Lawyer over a fairly lengthy period of time. The father asserts that he has been entirely abstinent from drugs since February 2009, that is a period of almost two years, and drug testing by the Independent Children’s Lawyer supports that contention.
Section 60CC(3)(b)(i) – Nature of the Relationship
According to Dr V:
the personality issues in the father are not such that would impact on his capacity to be an effective parent in a contact situation, or indeed as a carer of the child.
Whilst Dr V identified narcissistic traits in the father, the doctor felt that there was more to the father than his narcissism; Dr V felt that the father demonstrated a capacity for self-reflection and self-criticism. Similarly, whilst Dr V identified obsessional traits in the mother, he still felt that, given V’s age, her primary carer ought to be the mother.
Dr V accepted that the father should be given an opportunity to care for V for substantial periods, including overnight. The real issue, at least insofar as Dr V’s opinions are concerned, was how distressing it would be for V to be away from her mother for lengthy periods of time.
The Independent Children’s Lawyer submits that:
a finding that V has a close and loving relationship with both of her parents is co-extensive with the available evidence.
It needs to be noted, that V has been spending time with her father in accordance with my orders made September 2010 regularly and unsupervised, including overnight, as earlier set out.
Section 60CC(3)(b)(ii) – Relationship with other persons
The mother gave evidence that V has some contact with her maternal family (who all reside overseas) either via the internet, or when they visit Australia. The mother has not re-partnered, nor does she apparently have any family in Australia. The father is in a new relationship with Ms W, who has a son who is about the same age as V. That relationship would appear to be in its early stages. I was impressed with Ms W, who gave very brief evidence before me. It seems that each of the father, and Ms W, are attempting to take their relationship “one step at a time”. The evidence suggests that V gets along well with both Ms W and her son, and has also had some contact with Ms W’s mother.
Section 60CC(3)(c) – Willingness and Ability to Promote Relationship
Dr V’s opinion was that the mother had entirely negative perceptions of the father. When cross-examined by the father, the mother was asked to list positive characteristics of the father. In answer she said:
He is very interested in learning, he has got quite a sense of adventure, he is very clever with technology and “he does have a love for [V]”.
It might be observed that but one of those matters the mother lists had any direct relationship with the nature of the emotional and psychological nurture that the father might provide to V.
I consider that the final matter listed is, in light of the evidence by the mother, earlier referred to somewhat grudgingly conceded, and I was not at all convinced that the mother genuinely believes it.
This is a troubling aspect of this case. Each of the parties need to accord to the other the fulsome relationship that V plainly needs with each of them. I consider that the mother’s attitude is a potential impediment to that, and I consider that the father’s narcissism is a potential impediment to his perception of, and support of the relationship between V and the mother. The mother has repeatedly, unilaterally suspended time between V and her father. When I asked the mother about this, she stated that if she felt that V was in any danger of harm, she would suspend the time again.
Whilst on one level the attitude of a parent that is designed to predominate protection of the child from harm, is of course, a central aspect of parenting. The answer, given by the mother in the context in which it was given, is somewhat troubling. I am not convinced that the mother’s past motivations for suspending time have been entirely based on genuine serious concerns for V. The actions have about them, an element of the “self serving” or more benignly, the element of an enmeshed relationship spoken of by Dr V.
Subsequent to amending her orders to allow overnight time between the father and V, the mother was asked by counsel for the Independent Children’s Lawyer, whether she had the capacity to truly foster a genuine relationship between the father and V, if V remained living with her. The mother said:
Very much so, I want what is best for [V], I have listened very carefully and I don’t want her to be feeling that she is in the middle of being torn in one direction and another. I, even up until now, have been very careful to be very positive when she talks about her father, and the people that he is involved with, and I absolutely intend to continue that. And I have listened to the advice, and to what has been said…
I am somewhat troubled by the sincerity of those statements. However, I do consider that this process, and in particular the references in Department notes to the potential for the mother’s attitudes and behaviours to be productive of “emotional abuse” of V, have in fact, genuinely troubled the mother, and caused her to reassess her position. I certainly hope so, because a reassessment of her position is, in my view, central to the proper co-nurturing of V by her and the father. In a similar vein, as I have said, I consider that the father’s narcissistic traits impinge significantly on his capacity to accord to the mother a fulsome day to day role in V’s life. There is about him an element of “my way or the highway”, which, I suppose, is central to the nature of a narcissistic personality.
Dr V was concerned about the mother’s ability to facilitate a relationship between V and her father, and to not obstruct time. In fact, in both his report, and during oral evidence, Dr V said that a major concern for V was the potential for the mother to not facilitate a relationship between V and the father, and the risk that the mother may obstruct the time occurring, arising from what Dr V sees as the mother seeking a highly enmeshed relationship with V. I have referred to this issue earlier, and it will be plain that it is a matter that concerns me also.
More optimism is given by the mother’s actions more recently. Significantly, as it seems to me, those changes also, of course, coincide with V getting older. The fact that the parties separated when V was a tiny baby, and in my view, the incapacity of the father to fully appreciate the needs of V as a very tiny baby, have, I think, considerably contributed to the ideology of the conflict that has occurred between the parties since.
Counsel for the mother submitted that the Court ought to take the mother’s actions in amending her application and her actions since September 2010, as evidence of the fact that she will not obstruct time between the father and V. The father submits that the mother’s changing of her orders does not evidence a genuine change in belief on her part. He submits that it would be “extraordinary that [the mother] was not aware of the opinions of the Department” prior to the third day of the trial. The essence of the father’s submissions is that her attitude might be more reflective of her legal advice than her sincerity. As will be plain, I share some of those concerns.
I am not as convinced as, it appears, Dr V, that the mother is so easily led into opinions. I consider there is an element of wilfully embracing opinions that suit her desire for an enmeshed relationship, which of its nature, is somewhat exclusive of the father and as a result, an exaggeration of events that might serve that purpose.
Yet, the mother is also plainly intelligent. She knows that there is reliable evidence before the Court to suggest a strong and positive relationship between the father and V and evidence that her past actions have been seen by at least some within the Department and other authorities, as being emotionally abusive to V. What should be plain to the mother from these Reasons is that I share the concerns so expressed.
Section 60CC (3)(d)(i) – Changes
According to the Independent Children’s Lawyer:
The risk that a change in [V’s] circumstances (living with the father instead of the mother) and prolonged separation from the mother at this stage of [V’s] life is not in her best interests.
The evidence clearly supports the conclusion that a change in V’s circumstances entailing her being placed in her father’s care, will invariably cause significant distress to V. The mother has been V’s primary caregiver since birth and any time V has spent with her father since separation has been of limited duration and often in a supervised environment. The father has, since the mother first withheld V in September 2008, spent time with V overnight, only since my order of September 2010.
The father submits that V should be placed in his care, as the mother’s repeated allegations of sexual abuse demonstrate an inability of the mother to facilitate and encourage a close and continuing relationship between V and him, and constitutes “psychological harm” to V. Dr V was of the opinion that V ought remain with her mother. The doctor did, however, expressly state in his report that such an opinion was somewhat as a result of a “theoretical bias” on his behalf. Ms O suggests that V ought remain with her mother. According to Ms T (who observed V with her parents when she was nine months of age), V has a secure attachment to her mother, which:
…was to be expected, given the history of this family.
I take account of V’s age and her stage of development. Her strongest attachment is clearly with her mother. Her mother has clearly been her primary caregiver for virtually the whole of her life. The elements of enmeshment, whilst ultimately unhealthy, impact upon the strength of the mother-child attachment. A significant change in that is likely to be detrimental. Significant change is likely to cause V distress. The father is an untried primary carer.
Section 60CC (3)(e) – Practical Difficulty and Expense
Neither party raises any specific concerns with respect to this issue.
Section 60CC (3)(f) – Parental Capacity
I have referred to this issue earlier. I accept the evidence of Dr V that each of the parties have the capacity to individually meet V’s needs on a day-to-day basis, including her emotional and intellectual needs. The mother was unwilling or unable to provide an opinion on how V felt about her father. The evidence of Ms S suggests that when with V, the father is able to meet V’s immediate needs. I agree. Dr V stated that:
The personality issues in the father are not such that it would impact on his capacity to be an effective parent, in a contact situation or, indeed, as a carer of the child.
The Independent Children’s Lawyer submits that:
A finding that both parents have the capacity to provide for the needs of the child, including emotional and intellectual needs, is co-extensive with the evidence available.
Such findings are open on the evidence, yet, I remain concerned about deeper issues. Whether, for example, the mother can allow V to develop a relationship with her father, on V’s own terms, or whether enmeshment will hold sway? On the father’s part, concerns remain relating to his narcissism. Will he allow V to develop a relationship with her mother on V’s own terms? Will each of the parties allow V the fundamental freedom to develop an unimpeded picture of the mother and the father that she has for life. Will there be continual conflict between or criticism of one party by the other? Most of these concerns emanate from personality issues, rather than specific behaviours, which might be amenable to Court orders.
Section 60CC (3)(g) – Lifestyle etcetera
I will refer specifically, in a moment, to the issue of drugs, which loomed large in the case for the mother. The potential for each of the parties to travel outside Australia also needs to be addressed specifically.
Mr Sara asserted, in relation to this section, that the father is a ‘prolific’ traveller and has travelled to non-Hague Convention countries. The father is a holder of a Country 2 passport.
The father submitted that the mother is a flight risk. To support this contention the father pointed to the fact that all of the mother’s family is in the UK. Further, according to the father, despite what the mother says in relation to having built a support network in Australia, the mother has ‘no friends’. The father also points to evidence that the mother sought a Relocation Order and informed her psychologist that her ultimate goal was to move back to England. Similarly, Family Consultant, Ms T (who prepared a Report in July 2009) stated that the mother was seeking a Relocation Order so she could move to the UK for six months.
Mr P stated in his report that ‘I asked [the mother] whether she had given any thought to the prospect of returning to England, where she has a large extended family. She said she had given this thought, and the prospect held certain attractions for her. Certainly, I gained the view that the maternal grandmother favours this course’.
The father submitted that restrictions ought to be placed on the mother leaving Australia with V given that she has no ties to Australia. I am satisfied that such restrictions are necessary, applicable to each party. They will not prevent travel; rather, they will prevent unilateral action.
Section 60CC (3)(i)
The attitude of each of the parties to V and the responsibilities of parenthood are encompassed by the matters earlier discussed and the findings earlier made.
Section 60CC (3)(j) and (k) – Violence
Again, I have specifically dealt with this issue when discussing the issue of risk above.
Section 60CC (3)(l) – Future Conflict and Proceedings
The Independent Children’s Lawyer submits:
The father, in particular, has displayed a willingness to litigate and has not shown the same preparedness as the mother, to resolve the matters in dispute, in the best interests of V or to mollify his stance. There is a high degree of possibility that whatever orders are made, this matter will return to court in the future.
The father submits in response that he has at all times been a respondent to the mother’s applications (excluding contravention proceedings) and has not, excluding the contravention hearings, instigated any litigation. During oral submissions, the father referred to the Protection Order and stated that he decided that the best way to “build bridges” was to not file a cross-application and that’s why the protection order was made.
The father uses this as evidence that he is non-litigious. I have already referred to the submissions made by the father, in respect of the mother’s change of position, in respect of the orders that she now seeks. I am not prepared to find that either one party or the other has been more or less responsible for the litigation in this Court. It remains a tragedy that the parties have been litigating about V virtually from the time she was born. I reject the submission by the Independent Children’s Lawyer that the father is responsible for that, any more than the mother is responsible for it. What I suspect, strongly, is that the individual personality characteristics of the parties have each contributed to that litigation. I can only hope that it ceases.
Conclusions
(a) Sexual Abuse
I am satisfied to the requisite standard (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Evidence Act 1995 (Commonwealth) Section 140), that the father does not pose an unacceptable risk of harm to V. I record that I would be satisfied of that fact beyond a reasonable doubt, were that the standard to be applied. Counsel for the mother made a number of concessions – with respect, appropriately as it seems to me, included in his oral and written submissions.
They include a submission that prior to the mother amending her proposed orders “…there were grounds to assert that the mother was alienating [V]”. In written submissions, Mr S stated that “the contraventions suggested that the mother was not in the – that the mother has not, in the past, facilitated a relationship between the child and the father”.
In both oral and written submissions, counsel asserted that it was “axiomatic on the evidence that the father did not pose an unacceptable risk to [V]”.
In written submissions it is asserted that:
The mother’s current application is entirely inconsistent with respect to such findings [of sexual and/or physical abuse] being made.
Mr S also submits that:
The mother concedes that the draft of minutes of orders [that is, the amended orders], are inconsistent with any positive finding of sexual abuse having occurred.
During oral submissions counsel conceded that it was axiomatic that a finding of no sexual abuse ought be made. Both the Department and the Queensland police have investigated the allegations several times and have, on each occasion, found the allegations to be unsubstantiated. Examinations by both a general practitioner and a doctor at Hospital 1 were inconclusive of any abuse.
Counsel for the mother and the Independent Children’s Lawyer submit that I ought to accept that the mother’s allegations stem from her “vulnerability” and subsequent susceptibility. As earlier referred to, I am more cautious and would not be prepared to make a finding to that effect, without some caveats being placed upon it. Whatever her reason for alleging V has been sexually abused, I accept Dr V’s observation that the mother’s “belief” was neither “firm” nor do her amended orders (which include overnight time with the father), support a conclusion that the mother genuinely believes that the father has sexually abused V.
(b) Parental responsibility
Pursuant to s 61DA, in making parenting orders in relation to V, it is presumed that it is in V’s best interests for both her mother and father to have equal shared parental responsibility for her. This presumption however, may be rebutted where the evidence is sufficient to satisfy the Court that it would not be in the best interests of the child if the presumption applied (s 61DA(4)).
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as the Court orders, each of the father and mother has parental responsibility for V. A parenting order does not derogate from that save as is expressly ordered. But, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined.
Not only is that phrase not defined, but it might be thought to involve a concept different from that which guides the practicalities of co-parenting of children in either intact families, or in separated families where high levels of co‑operation, respect and agreement attend consensual post-separation co‑parenting arrangements. In those situations, there can be little doubt that, appropriately, parties share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, important aspects of it, for example, responsibilities and duties) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.
A finding that the parties are incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility (s 65DAC in my view) is a highly relevant matter in determining whether the best interests of V require the presumption to be rebutted in this case.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
Carrying out those tasks and obligations, on what might be a regular basis, particularly when, as here, a child is young, carries with it potential significant difficulties.
Equally, though, an order for “sole parental responsibility” in favour of a party (as is frequently sought as an alternative to either the sharing of parental responsibility or equal shared parental responsibility) may mean – at least arguably – that the other party has no rights, responsibilities and authority in respect of “major long term issues” for children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAE(1)).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child – particularly when, as here, the child is very young – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
The mother initially sought an order that she have “sole parental responsibility” for V. She now seeks an order for “equal shared parental responsibility”. The father continues to seek an order for “sole parental responsibility”. The father contends that the mother has failed, on numerous occasions to convey various information to him regarding V, including health complaints and medication she is taking. Conversely, the mother asserted during oral evidence that the father expressly stated that he did not want “chit chat” to occur between them, and that the father’s attitude generally made communication very difficult.
The evidence clearly reveals a significant degree of conflict and mistrust between these parties and a frequent incapacity to put aside their own issues and concentrate on V’s best interests. Their personality characteristics are likely, in my view, to continue to present very significant difficulties in this respect. If the parents were to share parental responsibility equally, further significant conflict between the parties is in my view likely, and it is axiomatic that such conflict is contraindicated in V’s best interests.
When determining whether or not the presumption ought to be rebutted, on the basis of best interests, I must be mindful of the considerations detailed in Section 60CC and the findings I have made in respect of those statutory considerations. Given the history between the parties and the high degree of conflict, and the significant potential for it to continue, I am of the belief that if both parents were to share equally in the parental responsibility for V, further conflict and litigation would almost inevitably ensue. I am satisfied that it is in the best interests for V, that the presumption contained in Section 61DA(1) be rebutted on the basis of V’s best interests.
Accordingly to borrow the expression used by the Full Court in Goode & Goode [2006] FamCA 1346 the issue of V’s best interests and the orders for time that follow is “at large”. As will be clear from the outline of the principles relating to parental responsibility, I do not consider that the finding just referred to, necessarily results in an order that there should be, without more, an order for “sole parental responsibility” in favour of one party. Such an order might be made, but be caveated by requirements contained within the order to do certain things in relation to the other parent insofar as “major long-term issues” are concerned.
(c) Live with
I repeat the matters earlier referred to when discussing the Section 60CC considerations. I am satisfied that it is in V’s best interests to remain living with her mother. She is still very young. Her primary attachment is with her mother. Her father is an untried primary carer. What’s more, the time the father has spent with V has been limited in its duration and much of it has occurred in a curtailed environment.
I consider that the changes for V in altering what has been the existing situation for virtually the whole of her life, particularly in a child so young, and at her stage of her environment, are likely to be very significant and put the point strongly away from that change occurring.
(d) Time with
V currently spends at least three days with her father each alternate week, and time overnight with him on the weekend every other week. It seems to me that the orders which are in V’s best interests, would see an increase in time between he and V, and an increased opportunity for him to spend overnight time with her, as well.
The mother seeks orders that V spend time from 3 pm Friday until 3 pm Saturday each alternate week, and from 9 am Saturday until 3 pm Sunday every other week, with that time gradually increasing until when V commences grade one. I consider that the time proposed by the mother is insufficient so as to develop a meaningful relationship between V and her father, and propose to order increased time. The orders that I make should however, in my view, take account of the fact that V is still very young, with much of her development pre-school, yet to occur. I refer again to the opinion of Dr V with respect to the difficulty likely to be experienced by V in respect of prolonged time away from her mother, and I have sought to balance that issue, together with the need for a proper and meaningful relationship to develop between the father and V.
Whilst Section 65DAA is rendered inapplicable by reason of the rebuttal of the presumption, and the intended orders for parental responsibility, the objects and principles of the Act remain relevant and applicable. They emphasise the role of both parents in V’s life. I am aware of those objects and principles and the need to primarily consider V having a meaningful relationship with each of her parents when arriving at my ultimate decision with respect to time. I am of the view that V will benefit from regular significant unsupervised time with her father and orders will reflect that finding.
(e) Drug use and testing
The Independent Children’s Lawyer submitted that random drug testing of the father for a further period of time might be warranted, and counsel for the mother similarly proposed an order for drug testing may be a means of mitigating the risk that the father’s previous drug consumption poses to V, according to the mother’s counsel, at least. The ICL also submitted that the mother and V would be assisted by the ICL not being discharged for a period of time so as to enable requests for random drug tests to be obtained from the father.
The father asserted that given that he has been drug abstinent for about two years now, that no such order was necessary, but that in order to, as it were, demonstrate his commitment to V, and indeed to remaining abstinent, he was amenable to an order that he be the subject of random drug testing. He did though, raise the issue of the cost of that testing, citing an approximate cost of $495 for follicle testing, and a range of between $120 and $190 for urine testing.
The evidence reveals that the father has consumed a variety of illicit drugs from a young age (possibly as young as 14) including, for instance, “magic mushrooms”, cocaine and cannabis in various forms.
Whilst any drug consumption is concerning in the context of the care of a very young child, Dr V was of the view that the father’s drug use which, according to the father has been purely marijuana since 2005 and nonexistent since February 2009, was recreational and the father was less likely to relapse. Accordingly, it seems to me that any order for drug testing is much less based on any potential risk associated therewith. Rather, such an order is founded more on what the father, with respect, properly sees is a demonstration of his commitment to a drug abstinent life, and the predominance of V’s needs over his.
Furthermore, Dr V flags, and I accept it as being relevant, that the demonstration by the father of that commitment to remaining drug free should provide to the mother a positive reference point for the father’s commitment to V. Accordingly, on balance, I consider that it is appropriate to make orders for that drug testing, but in light of the costs to limit them to not more than six per year, and to have them cease by the time V starts prep school.
Property
The mother and father were directors of a company C Pty Ltd ACN …. The mother resigned as a director of that company on 10 October 2008.
The husband seeks orders that the wife pay to him $12,500 by way of property settlement and that she alone be liable for the debts of C Pty Ltd – a total of $1650 which the father claims the mother incurred as a result of enlisting the accounting services of M & Co.
In relation to the property dispute, the mother seeks the following orders:
a)Each party retain their interests in and the other party relinquish any rights to or title in:
i)Any and all funds held to his/her credit with any financial institution;
ii)Superannuation entitlements;
iii)Motor vehicles in their current possession;
iv)Furniture and effects
b)The father is to retain his right/title in/to (and the wife is to relinquish her right/title in/to) “[D Company]”, “[C Pty Ltd]” and “[S Pty Ltd]”;
c)Each party shall be solely responsible for any and all debts and liabilities associated with any assets which they are to retain pursuant to these orders.
The father proposes the following orders:
a)The father and mother each retain their own property and that each party relinquish any property which belongs to the other or is in the other’s own name;
b)Each party be solely liable for any debts in their own name;
c)Mother be solely liable for the accountant’s debt in the amount of $1650.00 and otherwise relinquish the husband from this liability;
d)The mother pay the father the sum of $12,500.00 by way of property settlement; and
e)The parties each do all things necessary to wind up the business C Pty Ltd (ACN …).
There is, before the Court, negligible evidence relating to the issue of property settlement generally, in particular, there is negligible evidence regarding the property of the parties, or either of them, in either the pre or post separation period. There is no evidence before the Court relating to the respective contributions made by each of the parties during this very short relationship.
The usual “four-step process” to be undertaken by a court when dealing with a Section 79 claim, is of course well known. The absence of evidence in this case makes it impossible to carry out that task as is normally envisaged in a case of that type. It is not possible, for example, on the evidence before the Court, to arrive at an assessment of “the property or the parties or either of them”, or its value. Nor, is it possible to make findings about the contributions of the parties, but because there is no real evidence about what those contributions were. So to, evidence in relation to what might be considered to be relevant pursuant to Section 75(2) of the Act is notable by its absence.
Counsel for the mother submits that “there are negligible assets” and the “just and equitable resolution to these proceedings is the status quo. Each party should retain the assets in his or her possession.” The father contends that the mother, in spending approximately $30,000 in the months following separation, deliberately attempted to:
…claim poor and did not have to pay me a reasonable property settlement.
The mother asserts that the money was spent predominantly on legal fees, and on buying a car. The father seeks an order that those moneys be returned to the “property pool”, and that the father receive $12,500.
The father posits in his written submissions (paragraphs 88-93) that the mother also has access “to a multi-million dollar trust fund”. This is a contention rejected by the mother, and in any event, there is no reliable evidence upon which any such finding could be made. The scant evidence before the Court reveals that:
(a)Upon separating the mother was primarily responsible for supporting V and for providing for her day-to-day needs.
(b) The mother does not work and is currently in receipt of a pension.
(c) The father does not pay child support.
(d)The mother has no family in Australia, and on the father’s submission, at least, there is no support network, and is thus unable to rely on friends or family to assist with caring for V.
(e)The father has re-partnered and has, on his own evidence, a support network.
The evidence clearly reveals that the mother, having no support in Australia upon separating from the father, was solely responsible for supporting V. There is no evidence of the exact figure spent by the mother, nor is there any evidence to suggest that such money was not spent legitimately in obtaining legal advice and providing for V’s basic needs.
The Full Court has repeatedly held that a court ought not make an order under Section 79, unless in all the circumstances, it is just and equitable to make the order (See e.g. In the Marriage of Ferguson (1978) 4 FamLR 312; Read & Read (1984) FLC 91-527). In the particular circumstances of this case, and the glaring omissions in the evidence in relation to the issue of property, it seems to me that justice and equity require orders which essentially preserve the status quo, and leave each party the assets that are currently in their possession and so too their liabilities, and I will order accordingly.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 12 April 2011.
Associate:
Date: 20 April 2011.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Costs
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