Mercado and Morrow

[2018] FCCA 2736

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERCADO & MORROW [2018] FCCA 2736

Catchwords:
FAMILY LAW – Parenting dispute about young autistic child – father seeking to advance to overnight time – mother wholly opposed to overnight time – mother’s fear that father will sexually abuse child – mother’s fear based primarily on hearsay reports from parties known to dislike father – Court not accepting that father has sexually abused the child – father having substantially addressed previous drug and gambling addictions – orders for overnight time to progress as indicated by the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant: MR MERCADO

Respondent: MS MORROW

File Number: DGC 1917 of 2016

Judgment of: Judge Burchardt

Hearing dates: 20 & 21 August 2018

Date of Last Submission: 21 August 2018

Delivered at: Dandenong

Delivered on: 3 October 2018

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

Counsel for the Independent Children’s Lawyer: Mr Taghdir

Solicitors for the Respondent:	Taft Lawyers
IT IS NOTED that publication of this judgment under the pseudonym Mercado & Morrow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1917 of 2016

MR MERCADO

Applicant

And

MS MORROW

Respondent

REASONS FOR JUDGMENT

Introductory

1. This case is about the best interests of a young child, [X], born on … 2010.  She is autistic albeit, it would seem, relatively high functioning.  The father, whose position is broadly supported by the Independent Children’s Lawyer, seeks that the present regime of time move to include overnight time, such time to be increased on a slow basis.  The mother seeks that the present spend time regime either be reverted to supervised time, or alternatively remain as it is.  She is adamantly opposed to overnight time.

2. The mother’s opposition stems from a fear that the father will sexually abuse the child as she believes he has done in the past.  I do not agree.  The father has not abused the child and, in my view, is not likely to do so.  For the reasons that follow, I am going to make the orders proposed by the Independent Children’s Lawyer.

Agreed or Uncontroversial Matters

1. The father was born on … 1985 and the mother on … 1989.  They commenced a relationship when the mother was 16 and the father 20.  They bought a house together in 2011 largely on the basis of the proceeds of an accident claim made by the mother following a car accident.  Little is said about what happened to the property but the mother has deposed that the father went bankrupt in 2014 and the house was repossessed (by which I presume she means a mortgagee auction).

2. The mother has deposed to separation in June 2013 and related violence perpetrated by the father upon her.  An Intervention Order was taken out.  Final orders were made owing essentially to the non-participation of the father in the court case, on 30 January 2017 by which the father was to spend no time with the child.

3. The father lodged the extant application on 6 March 2017.  In essence, he seeks another chance.

4. The father has deposed that cohabitation commenced in 2009 although the relationship first commenced in 2007.  There was an extensive period of time from January 2016 until 2017 when the father spent no time with the child.

5. The father readily concedes that he took a lot of drugs both during and more particularly after the end of the relationship.  He harassed the mother in contravention of the extant Intervention Order (the most recent Intervention Order has only recently expired) and his conduct, on his own version of events, was deplorable.

6. The father has deposed to having ceased all drug use in mid-January 2017 and to ceasing to smoke in May 2017.  He has conducted in excess of 20 drug screens, all of which have been clear.  The father now lives with his parents and intends to live there for a further year.

7. Both of the parents now have jobs.  The mother is in a relationship with a Mr A who is considered to have a criminal past.  It appears that he does not fully cohabit with the mother but nonetheless regularly spends the night with her.

The Affidavits and Materials Filed by the Parties

1. The mother’s original application filed 27 June 2016 was accompanied by a Notice of Risk.  She was legally represented at the time.  The Notice of Risk referred to the father’s addiction to ice and an assault on his girlfriend, Ms B.  It is noteworthy that the Notice of Risk did not tick the box that denotes a risk of sexual assault or abuse.

2. The mother’s affidavit, filed contemporaneously, deposed to matters essentially set out in the agreed materials above.  She did however depose to the father having a relationship “12 months ago” i.e. 2015, with an underage girl called Ms B.

3. The affidavit also deposed to [X]’s autism.

4. The father’s affidavit, filed contemporaneously with his application on 6 March 2017, notes that [X] attends School C year one with an aide.  He described her condition as lower level Asperger’s.  I note that additionally to matters already traversed above, he deposed that the mother was a good mother.  He deposed to having taken a lot of drugs but that he had stopped in mid-January 2017.  He denied having any relationship of a sexual nature with Ms B although he did not deny knowing her in the context of his prior drug taking.  He deposed Mr A’s home having been raided by the Police.  He deposed to living with his parents.

5. In her affidavit filed contemporaneously with her response on 24 May 2017, the mother deposed to a fight in February 2017 between the father and Ms B which [X] had seen.  She also relevantly annexed a report by Ms D, psychologist, dated 15 September 2016.  This relevantly confirms [X]’s autism and gives a history which, self-evidently, was based solely upon the mother’s account.  The report traverses a number of hearsay assertions made by the mother alleging inappropriate sexual conduct on the part of the father both with Ms B, as a 16 year old, and as a 13 year old with a younger sister.  Self-evidently that latter matter, on any view, would have been a very long time ago.  It should be noted that Ms D opined that:

   “[X] doesn’t have a sense of danger and, if offered something she likes could easily be lead astray without fear.  Together with no conception of morality as well as expressive language disability, she is an extremely vulnerable little girl who requires constant support, supervision and protection.”

6. Ms D recommended that there be no contact with the father or with Ms B.

7. In his responding affidavit, filed 19 June 2017, the father deposed that he had been clean of drugs for five months and had started counselling sessions at … Counselling Centre.  He also deposed to having recently obtained employment and had been in full-time employment for three months.  He deposed that he had seen his drug and alcohol counsellor, Mr E, and had stopped smoking on 4 May 2017.  He is engaged in employment.

8. The mother had also filed, on 24 May, a further Notice of Risk.  Once again, she was legally represented at the time.  Also once again, although the Notice of Risk ticked the boxes for physical assault and serious psychological harm, the box for sexual assault or abuse was not ticked.  This is significant given that the report of Ms F clearly available to the mother and had been so for some time.

9. The next affidavit filed is an affidavit of Ms G, filed  24 October 2017.  It should be noted that the mother sought to make something of the fact that the party preparing the affidavit had erroneously described the deponent as Ms H even though the affidavit purported to be that of Ms G.  The mother appeared to regard this as a significant matter.  It is however quite apparent from the signature on the affidavit that it is that of Ms G and it is noteworthy, and, I would interpolate and say in passing, typical of the mother’s approach generally, that she should seek to make something of this minor discrepancy. 

10. The affidavit is of course a summary taken from the notes of the various workers who supervised time between the father and the child on visits from 15 July 2017 to 7 October 2017.  It is noteworthy that when the father first saw the child on 15 July 2017 she commented on not having seen him for a while (she was clearly aware of who he was despite this) and that she expressed a love for her father notwithstanding this absence.  The report shows, subject to some minor caveats about punctuality and the like, a completely unremarkable, affectionate relationship between [X] and her father.

11. In his affidavit filed 24 October 2017 the father gave further details of his drug and alcohol program.  He had seen Mr E for nine sessions.  He provided clear screens.  He had undertaken a course Amaze to better inform himself about Autism.  He appended a report from psychiatrist, Dr K.  I note that the father strenuously denied the allegations of sexual misconduct with Ms B and his sister.  The report noted the father’s methamphetamine use disorder and associated paranoia but that this would decline if the drug use ceased.  It also noted Mr Mercado’s gambling disorder.  Relevantly, Dr K noted at paragraphs 9 – 10 of his opinion and recommendations:

    “The methamphetamine use clearly is the potential main impediment to his parenting rather than his depression, which I believe is not severe enough at present to impair his parenting.  Urine drug screens will evidence continued abstinence. 

    In my opinion, his lack of contact with his daughter has been an important factor in his recent depression and that increased contact will contribute to an improvement in mental state.”

12. The mother’s next affidavit was filed on 16 November 2017.  She deposed that [X] has moderate Autism and in addition has an intellectual disability.  Her development at school is below her stated age.  She has a teacher’s aide and attends a mainstream school.  The mother deposed that [X] has no sense of strangers and would accompany anyone who was nice to her.  She deposed to a relationship with Mr A.  She deposed to an incident in April 2016 allegedly involving a violent confrontation between the father and Ms B which [X] observed.  She alleged that the father had been stalking her and repeated the assertion that the father had a sexual relationship with a younger sister when he was 13, the sister being 11.  She deposed to conversations she had had with Ms B, who had split up with the father.  One assertion that the father had found himself rubbing [X]’s private parts is hearsay upon hearsay.  Ms B had also made an assertion that the father had showered with [X] and had an erection on one such occasion.

13. The affidavit also noted that the mother had contacted someone called Ms L who allegedly asserted she was in a sexual relationship with the father.

14. The affidavit deposed to the fact that both of her parents were heroin addicts and that she had a poor relationship with her sister, Ms M (I have not traversed the father’s assertions about Ms M because once again they are hearsay upon hearsay).  Ms M has apparently recently been released from prison.  At paragraph 115 the mother deposed:

    “I am in a relationship with Mr A..... he does not live with me.  I have known him for fifteen years though not in a relationship with him.  I am aware that he has had problems with drugs.  I am aware of the police searching the premises where he lives.  Mr A tells me that this was to do with other persons in the house.  As a result of that search he was charged with possession of a drug.  He has since been to rehabilitation.”

15. The affidavit went on to seek to excuse Mr A of any misconduct by reference to an allegedly tragic childhood.

16. The affidavit also alleged that the father’s mother had some form of mental deficit (it is apparent that she is in early onset Alzheimer’s disease).

17. In the interim, the parties had seen Ms N who produced a report pursuant to section 11F of the Family Law Act on 31 May 2017.  Ms N noted relevantly that the mother was willing to undertake drug screening and noted the main concern expressed was that the father was inconsistent in the time that he spent.  I note that the mother revealed that Mr A had spent time in prison.  Ms N had recommended time at a Contact Centre.

18. On 31 October 2017, following supervised time observed in Ms G’s affidavit, Ms O produced another section 11F report. She observed that [X] was pleased to see her father and she recommended that supervision was unnecessary. She noted in passing that the alleged incident involving the father and his sister would have been approximately 20 years ago.

19. On 12 February 2018 the father filed a further affidavit.  He deposed that he had been in work since March 2017 and continuing.  He referred to Intervention Orders in 2013 and April 2016 (the latter to expire in April 2018) taken out against him by the mother.

20. The father denied all allegations of sexual impropriety put against him.  He admitted a relationship with Ms L relating to the mutual use of ice but denied any sexual conduct.

21. In paragraph 26 the father deposed that he had recently been contacted by Child Protection Services about a claim made by the mother about [X].  She had reported that on 18 November 2017 [X] came home showing sexual behaviour after spending two hours of unsupervised time with him.  He deposed that changeover occurred in Suburb P and he spent his unsupervised time together with the child and his parents at … Shopping Centre because Suburb Q was too far of a drive in the meantime.

22. On 8 March 2018 Ms H filed a further affidavit.  This appended reports of 11 supervised changeovers between 3 December 2017 and 17 February 2018.  It should be noted that the child’s behaviour in the presence of the father was at all times unremarkable and discloses a good relationship between [X] and her father.

23. On 21 March 2018 the mother filed an affidavit from her sister, Ms M.  She took issue with disclosures made, as it were, on her part, deposed to on a hearsay basis by the father.  Likewise, this affidavit while supportive of her sister, is larded with hearsay.

24. The mother filed a further affidavit on 17 March 2018.  It noted that orders had been made on 17 November 2018 for unsupervised time.  The mother deposed that [X]’s anxiety had risen since this had occurred.  She deposed that on 18 November 2017:

    “The child raised concerns which related to inappropriate behaviour relating to her father.”

25. The nature of these concerns was not detailed.  The affidavit deposed that on 19 November 2018 the mother and child attended Suburb R Police Complex and attempted an interview.  Due to the alleged limited response by [X] to the officer, they were referred to … Hospital.  The examination on 20 November 2017 was inconclusive.  The affidavit also asserts a number of inconsistencies and instances of the father misleading the Court.  These are essentially argumentative in their nature and show the mother’s tendency to concentrate on matters of minutiae rather than matters of substance. 

26. I note annexure 3, which is a series of texts allegedly between the young woman, Ms L, and the mother.  The material does not unequivocally assert a sexual relationship between Ms L and the father and indeed is entirely consistent with his assertion that they met in the context of ice usage.  Relevantly, the texts sent assert:

    “But I hope you know I hate Ms B & Mr Mercado with a passion and I have no sympathy for Ms B.”

    this being Ms L talking.

27. A responding message from the mother relevantly says:

    “I am just trying to protect my little girl from a monster that just so happens to be her dad.”

28. I note that no specific allegations of sexual misconduct by the father are made in the substance of the mother’s affidavit.  Rather, there is generalised but unspecific reference to disclosures by [X].

29. The father filed a further affidavit on 13 August 2018.  He referred to his ongoing employment and annexed a reference from his boss and also a reference from his drug and alcohol counsellor.  Both speak highly of the efforts the father has made to change around his life.  He deposed to having overcome all his addictions.  He deposed to his ongoing time with [X] and the regime that they engage in when she is with him.  He deposed to having completed a course about Autism run by Early Days and the steps he had taken consequent to that.  By and large he traversed and sought to refute allegations made in the mother and her sister’s affidavit material.  I note that he accepted that Mr A loves [X].

30. The father repeated at paragraph 38 his version of the events of

    
    

    17 November 2017 which is the first time he spent unsupervised time.  This was what had led the mother to go to the Police and subsequently … Hospital.  He repeated that he had been in a public place with her and his parents at all times.

31. On 14 August 2018 the father’s father filed a supporting affidavit which takes the matter no further.  On 16 August 2018, Ms H filed a further affidavit.  This deposed to changeovers from February 2018 until June 2018.  They are all entirely unremarkable save that it shows, in my view, [X]’s relationship with her father is even better than before.

The Family Report

1. The family report by Ms S sets out the background to the matter.  I note that at paragraph 9 Mr A was reported as living in Suburb T but at present stays with the mother at her home.  The mother works four days per week and has Wednesday off. 

2. At paragraph 15, Ms S recorded the father’s version of the commencement of the relationship.  Perhaps unsurprisingly, he sought to minimise their age difference at the time.  He conceded having smashed a window and put the mother’s belongings on the lawn at the time of separation although he denied physical and verbal violence.  He admitted not coping well with separation.  At paragraph 18, Ms S recorded:

   “Mr Mercado denied that he had a sexual attraction towards teenage girls as alleged by the mother.  He denied that he had a sexual relationship with Ms B when she was 16 years old and insisted that they were mere friends.  The only common connection between them was drug sharing and usage. 

   He explained that Ms B had endured an impoverished upbringing and was mentally a very disturbed young lady.  He reported that he ended his association with her when she smashed a kitchen window at his parents’ home insisting to get in when he did not want her there.  He shared that he and also Ms Morrow, had taken out an Intervention Order against Ms B.”

3. He went on to dismiss Ms B’s allegations against him as being a means of getting back with him.  He also denied a sexual relationship with his sister.

4. He gave an account to Ms S of his cessation of drug use which is wholly supported by the drug screens he has undertaken and asserted he had ceased gaming.

5. It should be noted that the father continued to express criticisms of the mother allegedly using drugs and his reservations about Mr A.

6. In the interview with the mother, Ms S recorded at paragraph 26:

   “Ms Morrow presented as distraught about the current proceedings and distressed with the thought that the Court might make an order for [X] to spend extended overnight time with her father which she firmly believed would be unsafe for her.  She believed that [X]’s time spent with her father should never have occurred without supervision.  Ms Morrow stated that she was astounded that the court did not seem concerned about protecting the child’s safety but more concerned about the rights of the father.  She indicated that she is determined to fight her best to protect her child from abuse by the father and the system.”

7. I note that in her account about the father’s family of origin, the mother repeated the assertion that a sister of the father had informed her of abuse by the father on another sister.  As I have already indicated, this case is larded with hearsay upon hearsay.  I note the mother’s difficult background set out at paragraph 30 of the report.

1. At paragraph 32, report continues:

   “When asked why she had not submitted drug screens as requested by the ICL, the mother became tearful.  She stated that she did not understand why she had to do drug screens when she was not into drugs at all.  She expressed a view that the legal system treated her like a criminal instead of protecting her child from the drug addict father.  When asked if she planned to attend a drug screen in the immediate future, Ms Morrow evaded a specific response.”

2. At paragraph 33, the mother went into specifics about her allegations about the November 2017 incident.  Having traversed the matter to do with Ms B, the report continued:

   “The mother alleged that after spending time with the father, [X] had returned home stating her father hurt her genitals.  She had also reportedly seen putting a cushion between her legs and was running her mid finger up and down her vagina.  [X] had allegedly told her that he father had punched her vagina.  The forensic examination of the child had not established that [X] was sexually abused, but Ms Morrow felt that did not rule out that [X] was safe spending unsupervised time with her father.”

3. In paragraph 35, the report noted:

   “The mother confirmed that she was in a relationship with Mr A and agreed that he had a criminal past.  She reported that Mr A was a drug user in the past, but he was rehabilitated in November 2016.”

4. She went on to detail Mr A’s tragic childhood.  The report noted that Mr A had not attended the report process and at paragraph 36:

   “When asked why he did not attend the assessment process, Ms Morrow reported that ‘He is at work.  I did ask him to attend but he is not happy with the whole situation.’”

5. The mother conceded to Ms S that Ms B was an emotionally vulnerable and mentally unstable young girl.  She went so far as to assert that Ms B had also sexually abused some of her own family members.

6. At paragraph 40 the report noted:

   “Ms Morrow expressed feelings of hurt and disappointment that the Court was prosecuting her for trying to protect her child from abuse.  She hoped that the truth of the matter will finally be established in the proceedings and [X] will not be allowed to spend overnight visits with the father until she is of an age where she would have the knowledge and ability to protect herself from mental manipulation and sexual abuse perpetrated by the father.”

7. Ms S noted (paragraph 44) that [X] was comfortable in her mother’s company.  She also noted that she was perfectly comfortable with her father (paragraph 46).

8. The report noted that [X] had grown up in the primary care of her mother with whom she enjoys a strong and secure bond (paragraph 47).  The report traverses the allegations of sexual misconduct on the part of the father and notes his strong denials.  At paragraph 58 the report asserted:

   “The writer is unable to make further comments on the issue unless the father’s sister or sister in law comes forward to provide further details.  However, if the allegation is proven to be factual, there would be concerns about the father’s sexual behaviour towards younger females and he may have to attend therapy to understand and change his behaviour.”

9. The report noted the very substantial gains by the father.

10. At paragraph 64 the report noted:

    “Ms Morrow was aware that she was supposed to attend and provide drug screens.  During the interview she noted she had not provided the drug screens.  When asked about it, Ms Morrow responded with tears and questioned in anger as to why she was treated as a criminal.  Ms Morrow seemed emotionally attached to Mr A and spoke in support of him, as if to make excuses about why he has a criminal record.  She does not even remotely consider the idea that it may not be safe for [X] to be around him.  Mr A did not attend the report interview and the mother informed that she had requested him, but he did not wish to attend.”

11. In paragraphs 66 – 67 the report continued:

    “Based on the observed positive relationship between the father and [X], the writer is of the opinion that the child would benefit from spending more time with the father.  It is appropriate that the time the child spends with the father is increased on a gradual basis so that both parents and as well as the child have time to adjust to the changes to ensure the continuation of the visits. 

    The writer is of the view that in this case, some of the allegations made about the father or the mother could only be concluded in one way or the other during the Court process after both parties have provided evidence.  If there are no further concerns about the father comes up in the proceedings, it is logical that [X]’s time with the father commences with one overnight and gradually increases in the number of nights she spends with her father to extend to Friday after school until Monday morning school time on a fortnightly basis.”

12. The report recommended changeover in a public place such as McDonald’s.  The report also recommended the mother attend supervised drug screening and that the child not be left in the unsupervised care of Mr A.

The Submissions and Evidence Given at Court

1. The Independent Children’s Lawyer briefly introduced the opposing positions of the parties. What follows is taken from my notes.

The Submissions and Evidence of the Father

1. In his opening, the father said he works full-time as a labourer and has been since March 2017.  He has been a non‑using drug addict since January 2017.  He has taken no drugs, including ice.  He has got away from his former lifestyle for his daughter.  He is not the same person he used to be.  He is a changed man and has extensive support.  He was not proud of the choices he had made along the way.  He had bad associations and made wrong choices while addicted.  He is living in a good environment with his parents, and the household is drug‑free and alcohol‑free.  There is a bedroom available for [X].  She has two pet rabbits and two birds.  He has made appropriate endeavours to understand autism.  He was formerly a gambling addict but has not gambled since early December 2017.  His child is doing well at school.  He pointed to the fact that there were no drug tests from the mother and that this concerned him.  He said that he and the mother were not able to be civil to one another.

2. Once sworn, the father adopted his affidavits as true and correct.

3. Under cross‑examination by the Independent Children’s Lawyer, the father confirmed there is a room available for [X] in his parents’ home.  It is a four‑bedroomed house, and he can live there indefinitely.  His mother has Alzheimer’s, and he provides assistance.  His other siblings are not involved, and he needs to support his mum.  He said he could move out but will not do so for the moment.  He might move out towards the end of the year or the start of next year.  His father lives with them.

4. The father confirmed that he now seeks that [X] live with him from Friday to Sunday.  This is because of work commitments, although he could change this if necessary.  His mother is 66, and his father is 59.  He arranges day care for her.  The previous week, she had been dropped back by an ambulance because she went for a walk and became disoriented.  He would make sure that there was someone present if he takes [X] out.  He will do the cooking if [X] stays with him.  He has contacted …, which is the child’s occupational therapist, but they were unable to speak to him because he was not listed.  He has contacted the paediatrician, who got back to him but had not seen [X] for some time.  He contacted the treating psychologist and paid $200 to see her.  He did not ask her for documents about his daughter’s progression.  I would interpolate and say that some of the father’s evidence about his endeavours to contact treating professionals seemed somewhat vague.

5. The father had been to a one‑day seminar about autism with a mate.  He also has Facebook contact with other parents of autistic children.  He would post on Facebook if he has problems, and there is a lot of information on these pages. 

6. [X] had had one meltdown but, apart from that, had been all right.  The meltdown was on a Wednesday night, which was limited time.  They were playing a game, and [X] was competitive.  She became frustrated.  The father suggested that the game stop, which led to a meltdown.  He had tried to distract the child and said he had pulled over at one stage.  From this, it became apparent that they were in the car at the time and on the way home.  The child was still distressed when handed back.  At the Police Station, he told the maternal grandmother about this.  [X] jumped into the back of the grandmother’s car quite quickly and settled down and waved goodbye.  The father said there had been a Communications Book through Family Life but that there were no other communications between the parties.  He would be prepared to talk to the mother about the child by text or phone call.  There are no text messages between them.  He would use a Communications Book into the future.

7. The father had read Ms S’s report.  He was prepared to continue counselling with Mr E if needed.  At the moment, he was not opposed to ongoing drug screens if they are required, but he pointed to the fact that the mother had not done hers.  He was prepared to continue counselling with Mr E if necessary.

8. The mother did not elect to put questions to the father, and there was no re‑examination.

The Submissions and Evidence of the Mother

1. The mother in her opening said she was 29 years old, and [X] was eight years old.  She had been her primary carer for all her life.  She had sought professional resources.  [X] was not an Asperger’s Syndrome sufferer but was low‑functioning autistic.  She was well below her age‑appropriate achievements in prep.  She had tried to be patient with the father, but she needed to protect [X].  It was difficult because disclosures were made by [X] to her.  The father was interested in underage girls.  Overnight time was inappropriate, but she did not want to take the father’s time away.

2. The mother adopted her affidavits as true and correct. 

3. Under cross‑examination by the Independent Children’s Lawyer, the mother asserted she had undertaken four drug tests.  She said she did not receive a request on 27 June.  She conceded that creatinine levels were below the required level in relation to three drug screens, which were tendered as exhibits ICL1, 2 and 3 respectively.  They all show that the creatinine level was inappropriate and that “this suggests dilution of the sample and possible false negative results”.

4. I should interpolate and say that I found the mother’s answers about drug testing prevaricatory and unsatisfactory.  This is so even if one gives the mother the benefit of the doubt in relation to exhibit ICL4.

5. The mother denied evading Ms S’s questions about her drug testing and denied saying that the legal system treats her as a criminal.  The mother expressed a preparedness to undertake a hair follicle test if ordered. 

6. The mother said she was in a relationship with Mr A.  She was not sure if he had used drugs.  They did not live together.  She had not asked him to undertake drug screens because that breaches his privacy.  She said she could tell by people’s behaviour whether they were on drugs, and she did not leave the child alone with Mr A. 

7. The Independent Children’s Lawyer then pointed out that Mr A has taken the child to changeover after 19 March 2018.  She said that she was pretty sure this was in February.  In fact, Mr A’s sister had driven them because he does not have a car.  I should note that the answers given by the mother to the Independent Children’s Lawyer, in my view, expressed in her demeanour (what she said and the way she said it) a hostility to the Independent Children’s Lawyer.

8. The mother traversed the assertions made by Ms B.  She conceded that neither Ms B nor the father’s sister were on affidavit.  She conceded that there were no concerns recorded by the Contact Centre.  She said [X] makes disclosures.  The Department of Health and Human Services and the Police have been contacted.  The allegations were conceded not to be on affidavit.

9. When taken to the section 11F report of Ms O, the mother, surprisingly, said that that report was not admissible. She went on to dispute what Ms O had to say about the interaction between the father and [X].

10. The mother was cross‑examined about [X]’s progress at school, but the answers, in my view, were essentially argumentative.  Exhibit ICL5, which is [X]’s report for year 2, semester 1 2018 shows that she is behind in almost all areas but, in my view, not enormously so. 

11. The mother says she lives some 10 to 15 minutes drive from the school.  The child is meant to be at school by 8.50 am.  There were some late arrivals.  [X]’s attendance record was tendered at ICL6 and does, in my view, show a significant number of late arrivals at school and unexplained non‑attendance.

12. The mother did not agree about overnight time but was prepared to continue the extant time regime. 

13. The mother conceded that changeovers cannot continue at Family Life.  They have taken place at a Police Station since.  The maternal grandmother does the changeovers anyway.  When pressed, the mother appeared to concede that changeovers conducted by her mother could take place at McDonald’s, but if it was her, it should be at a Police Station.  The mother was agreeable to a Communications Book but did not want messages by phone or SMS.  Emails would be okay in an emergency.

14. There was no cross‑examination by the father and no re‑examination.

The Evidence of Ms S

1. Ms S adopted her Family Report as exhibit M1.

2. Under cross‑examination by the father, Ms S confirmed that she thought the mother was not open about the question of drug screens and had been evasive.  She said the mother was not willing to look at the matter in any way save her own.  The mother had told Ms S that Mr A had no sexual offending history, so it was fine for him to be with the child.  The narrative of Mr A’s childhood was scary.

3. Ms S confirmed that the mother has continuing anxiety about any extension of time.  She thinks the child was abused by the father based on hearsay.  All forensic testing showed no abuse, but the mother believes it happened.  The mother is concerned about overnight time, but sex abuse does not just happen overnight.

4. When questioned about paragraph 45 of her report, Ms S confirmed that [X] often looks at her mother as if expecting her to respond.  There is a good relationship between the mother and daughter, and there is nothing wrong with her looking at her mother.

5. Under questioning by the mother, Ms S confirmed that [X] wanted to continue on with her time with the father during interview.  The father prepared the child to end and separate from him.  He had a good understanding of the child’s needs.  Ms S conceded that she might have texted her, “Will you come and get her?”, but [X] was not distressed at all.

6. When it was put to her that she had seen the parents and child together, Ms S was adamant that this was not the case.  It never happens.  Especially in [X]’s case.  It was clear there was a good relationship with the mother, and she thoroughly enjoyed her time with the father.  When she was finishing with the mother, [X] knew her father was coming and was excited.  She may have pushed the mother out.  She really wanted to see her father.  She probably did not want them both in the same area.

7. Ms S was questioned about the father’s alleged interest in young girls.  She said that people doing drugs are more likely to do inappropriate things.  She had not read the Police material to which the mother referred.  She had been 16 and the father 20 when the relationship started.  He denied a sexual relationship with Ms B.  He said he knew her through drugs.  There was no evidence to establish this, and the matter had to come to Court.  If he abused his sister when he was 15 and she 13, it would be a concern, but Ms S did not know whether this had taken place or not.  There was nothing in the Notice of Risk or in the Child Centre records.  The alleged incident in November 2017 was unbelievable.  The father had taken out an Intervention Order against Ms B.

8. Under cross‑examination by the Independent Children’s Lawyer, Ms S said she would think overnight time would be appropriate if findings of fact were made.  It could increase to two nights after a year or possibly six months, but [X] is autistic.  It should be Saturday morning till Sunday, 5 pm.  Every Wednesday time was to continue.  If the evidence showed that the mother was taking drugs or was not willing to undertake a drug test, this would be a concern.  The Wednesday after school should continue.  The father was happy with the mother’s care of the child and says she is a good mother.  She looks after the child well.  Parental responsibility was a matter for the Court.  During the holidays, there could be one night extra for a year.  This could slowly be extended.  Equal time would take years.  It was necessary to move forward slowly. 

9. In response to a question from the Court, asking her to comment about Mr U’s expressed view that children who are abused are always very sad and that the child did not appear to be sad in the father’s presence, Ms S said she did not believe the father had abused the child.  It might, however, be difficult to say because the child is autistic and might not understand abuse.

Final Submissions

1. The Independent Children’s Lawyer submitted the father’s affidavit was unchallenged insofar as it dealt with his relationship with [X].  The reports from Family Life about contact and the affidavit of Ms G all suggested that time should increase.  The mother’s capacity as primary carer was not in dispute.  The only concern is the resistance to drug screens because the ones provided were diluted.  Time on Wednesdays would provide some monitoring opportunities for the father. 

2. There was no longer an issue about supervision between the child and the father. The issue was overnight time, where the mother fears sexual abuse. The Independent Children’s Lawyer submitted there was no evidence to support this. The mother is concerned as to the father’s capacity to care for the child given his drug use, but he has done over 20 supervised clean drug screens. He attends upon Mr E. All of this shows that the father had turned his life around, and this was supported by external observations. The section 11F report and Ms S’s Family Report show a good relationship between the father and the child.

3. Counsel then set out a time schedule for time to gradually increase to half school holidays by 2022.  Counsel dealt with Special Days.  It was submitted that the Police Station should continue, but there could be changeover at McDonald’s, where changeover was done by their agents.

4. In respect of parental responsibility, the Independent Children’s Lawyer submitted that given [X]’s needs, there should be sole parental responsibility to the mother regarding all issues relating to [X]’s autism and health but that the father be informed, but that all other matters should be the subject of an order for equal shared parental responsibility.

5. The mother’s brief final submissions simply repeated her opposition to increases in times.

6. The father’s final submission commenced with an apology to the mother for his behaviour from 2013 onwards.  He said he had made significant changes.  He would never abuse his child sexually.  He relies upon his Outline of Case.  He pointed to Ms S’s Family Report and further detailed his concerns about the mother’s drug use.  He sought an order for hair follicle testing of the mother and that, if this were positive, the mother should obtain treatment. 

7. In further response, the mother indicated that changeover could take place at McDonald’s if her mother was doing the changeover, but it should be a Police Station if not.  She confirmed that she does not take drugs.  She is in a relationship with Mr A but not living with him.  She sought that the injunction on leaving the child alone with Mr A be removed as it could be inconvenient if she had to go out while [X] was in bed.

Findings about the Credit of the Witnesses

1. Both of the parents at times gave evidence under pressure of speech.  The mother at times became labile, particularly when detailing the alleged disclosures and her need to protect [X]. 

2. The father struck me as being a straightforward, if perhaps slightly loud, witness.  Subject to some reservations already expressed, I found him to be a convincing witness.

3. The mother was not quite such a good witness.  Her answers were at times prevaricatory and evasive.  She had a marked tendency to seek to dismiss documents that she felt antithetical to her case with spurious technical objections.  Her failure to take drug screens and her inadequate explanations for doing so are not impressive.

4. Ms S was a professional witness giving evidence within her area of expertise.  She was quite prepared to make concessions if they were there to be made and answered all questions put to her (some of which were not easy to construe) directly and responsively.  I fully accept the force of Ms S’s evidence.

Findings about the Facts

1. Although some of the matters now addressed may fall to be considered further under the statutory pathway, it is appropriate, given the nature of this dispute, to make clear findings of facts at this stage. 

2. The parties met when the mother was very young.  The father was four years older than her, and in the scheme of their ages at the time, this was a significant age imbalance and one in which I have no doubt there was a power imbalance associated with it.  On his own case, the father’s conduct during the years the parties were together leaves an enormous amount to be desired.  He was clearly violent, at least in the sense of being aggressive, domineering, yelling and swearing at the mother.  I am unable to say whether or not he actually assaulted her, but in the face of his own admissions, this is immaterial.  His conduct, on any view of the matter, was utterly deplorable.  He was drug‑abusing, gambling‑abusing and violent in the mother’s presence (he admits, in large part, the events asserted by the mother at the time of separation).

3. Notwithstanding this, the father has made truly commendable efforts to get his life back on track.  I have no hesitation in accepting that he is now drug‑free.  He has appropriate assistance through his counsellor should it be required, but his achievement in remaining not only drug‑free but nicotine‑free for well over a year stands entirely to his credit.  Likewise, he is now in what seems to be secure employment, in which he is well regarded by his employer as an excellent employee.  He, additionally, now lives with his parents.  This gives him some measure of assistance, but it is also to his credit that he is assisting his mother, who has the great misfortune to be suffering early‑onset Alzheimer’s.

4. The mother has always been the primary carer for the child, and the father has conceded that she is a good and loving mother.  Her relationship with Mr A remains a matter of concern.  Mr A’s surly refusal to cooperate with the interview process is consistent with his criminal history and past drug use.  It is a matter of concern to the Court that the mother should continue a relationship with someone whose past and, more particularly, likely present is so murky.  He has not been put on affidavit and should have been, given the nature of his relationship with the mother.

5. The mother’s drug screens are a matter of concern, but it should be noted that there is no application for change of residence, nor, indeed, could one be contemplated.  The Independent Children’s Lawyer has not sought that the mother undertake a hair follicle test.

6. It should be noted that the two most concerning allegations in the case, namely, the father’s alleged propensity to abuse his daughter because of an abnormal interest in young girls and the mother’s drugs, are both the subject of vehement denial by the relevant parties.  While there is some objective evidence to support the father’s assertions, the fact is that the mother has denied taking drugs on her oath and in the presence of the Court in response to a direct question from the Bench. 

7. I should deal at this point, and in terms, with the mother’s allegations about the father’s interest in young girls and the possibility of sexual abuse of his daughter. 

8. The mother’s case about the father’s interest in underage girls has only one objective support, namely, the fact that his relationship with her started when she was 16 and he was 20. This was, of course, outside the prescribed limits in the Criminal Code of Victoria. It is a matter that stands against the father. Nonetheless, that relationship continued for a number of years, and while it undoubtedly involved abusive behaviour on the father’s part, most particularly towards the end, the impropriety of its commencement needs to be seen in that context.

9. All the other allegations made about the father (i.e., with Ms B, Ms L and his sister) are hearsay upon hearsay.  Furthermore, the informants, so to speak, are people who are clearly beset by significant emotional and mental problems and likely, as it would seem, to have a very definite bias against the father in any event.  There is too much white noise in this case, and I do not accept that the father has any improper interest in underage girls.  The allegations of incest are extraordinarily historical, on any view, and I accept the father’s denials.

10. Furthermore, distasteful as an interest in teenage girls would be, it is an altogether different matter to presuppose that the father has a propensity to abuse his daughter.  Although the mother’s evidence was difficult to construe, it seems that the primary disclosures allegedly made took place after a visit for two hours on 17 November 2017.  I should make it clear that I entirely accept the father’s account of that occasion.  He was in a public place with his parents at all times.

11. This means that the disclosures allegedly made by [X] simply were not true. I appreciate that the mother thinks that they were, and she acted on them and took the child to a Police Station and then to a hospital to have her examined.  The results were inconclusive, but that was because nothing had occurred.  I fully accept the father’s evidence that he would never abuse his daughter.  As I explained to the mother during final remarks, where there is a dispute of this nature, it is for the Court to make a determination.  My determination is clear.  The father has not abused [X] and is not going to do so.

Against These Findings, I Come to the Statutory Pathway

1. At this point it is appropriate to turn to the statutory pathway.  The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “Summary

   [65]  In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”

   
   

   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

2. I accept the Independent Children’s Lawyer’s submission.  Given [X]’s autism and the associated complexities of her development and the poor, if not non‑existent, capacity of the parents to communicate in a civil way, it is appropriate and in [X]’s best interests that the mother be given sole parental responsibility in relation to health issues, including [X]’s autism.  Otherwise, however, I accept the submission that there is no reason for parental responsibility not to be shared, notwithstanding the past history of violence.  A failure to do so is only likely to lead to the father being excised from proper input into [X]’s future.

3. The finding as to equal shared parental responsibility means that the Court has to at least consider equal time, but no party seeks it, and circumstances of the case are totally contraindicative to such an order.  Rather, it is a question of the child spending time and communicating with the father within the meaning of the Act.  At this point, I turn to the primary and additional considerations.

The Primary Considerations

1. Everyone agrees that it is in [X]’s best interests to have a meaningful relationship with both parents. 

2. There is, of course, an overarching need to protect [X] from the risk of emotional abuse, neglect or family violence.  This factor is, of course, required to be given greater weight.  Nonetheless, and in a sense, both parties accept, by the orders which they are prepared to countenance, that it is in [X]’s best interests to have a meaningful relationship with the father, notwithstanding the history of abuse during the relationship by the father of the mother.  The child has also plainly been exposed to abuse in the presence of the father and Ms B. 

The Additional Considerations

Section 60CC(3)(a)

1. [X] has not expressed views in terms. Nonetheless, it is clear from the section 11F report by Ms O, the affidavit of Ms G, the follow‑up report of Ms H and the report of Ms S that [X] enjoys a very secure and attached relationship with her mother but also has a loving and entirely appropriate relationship with her father. There is no direct evidence of her interrelationship with the paternal grandparents, but nothing has been said by the mother that would suggest that that is anything other than appropriate. The father appears to concede that the child is loved by Mr A, notwithstanding the various reservations about Mr A’s character more generally.

Section 60CC(3)(b)

1. I have, in effect, dealt with this matter immediately above.

Section 60CC(3)(c)

1. The father concedes that following separation, he completely failed properly to discharge his obligations as a parent.  He allowed a lengthy period of time to go by when he spent no time with her.  Nonetheless, to his credit, he has now got his life sorted out and seeks to be involved in an appropriate way on an ongoing basis.  The mother has always been the primary carer of the child and is conceded by the father to be a good mother.

Section 60CC(3)(ca)

1. In a sense, this has also just been dealt with.  The mother has, indeed, fulfilled her obligations to maintain the child at all points.  The father has failed to do so for at least a period of time.  From evidence given during the currency of the case, it appears that he is prepared to pay Child Support but that the mother has been unwilling to engage with the process to enable this to occur.

Section 60CC(3)(d)

1. Any increase of time to overnight will be an immense step for [X].  Her autism makes change challenging for her, and everyone agrees about this, including, most particularly, Ms S.  Ms S has suggested that any change take place only on a very slowly‑slowly basis.  Nonetheless, Ms S has recommended that if appropriate findings are made (and I have made findings exonerating the father), the time should move to overnight and slowly thereafter.  I accept that this is so.

Section 60CC(3)(e)

1. There is no difficulty, in terms of expense, with the child spending increased time with the father.  The only practical difficulties are those associated with [X]’s autism. 

2. There is, likewise, no practical difficulty with the child spending overnight time with her father.  His parenting skills are, in my view, sufficiently developed to enable this to occur.  Obviously, at the start, it will be a challenge for [X], and she will need the support of both her parents to make the transition.

Section 60CC(3)(f)

1. The mother is a good mother who has provided for the needs of the child and who has attended, in the most commendable way, to coping with the difficulties associated with, and arising from, [X]’s autism.  The area where she is, perhaps understandably, deficient is in promoting the relationship with the father.  Her views of the father’s propensities, based as they are on passing hearsay from parties who are in no wise impartial, is a problem.  It is to be hoped that this judgment will help her get over her misconceived notion that the father is likely to abuse the child.  Given its entrenched nature, it may well be to her benefit to seek counselling to enable her to deal with this.  No party has, however, sought that I make such an order, and I will not do so.

2. The father, from an admittedly very low base, has made great gains.  He has taken steps to inform himself about autism and now fully accepts the diagnosis, whereas previously he was reluctant, it would seem, to do so.  He is plainly a loving father, and the observations of the Contact Centre and of Ms S suggest that he will be fully able to play an appropriate part in [X]’s future.

Section 60CC(3)(g)

1. The father’s current lifestyle and present background is greatly to his credit.  He has a deplorable history prior to about the start of 2017, when he finally started to take steps to improve himself.  I accept that he is drug‑free, gambling‑addiction‑free, does not smoke and is not abusing alcohol.  He impressed me, as he did Ms S, as a person genuinely keen to parent in an appropriate way.

2. The mother’s personality is, in a sense, more complex.  She is, to an extent, in a relationship with a man whose antecedents are unfortunate, and she tends to minimise Mr A’s past difficulties.  She is evasive about drug screens.  Nonetheless, she is the mother that [X] has, and on all the objective materials, [X] is doing at least as well as can be expected at school and in life generally.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. Both parents clearly love [X] and want the best for her.  Their past history, unsurprisingly, makes it difficult for either parent to fully exonerate the other.  The mother continues to have dark suspicions about the father’s sexual propensities, and the father has dark suspicions about the mother’s drug use and relationship with Mr A.  They will both need to get over these concerns because, in the ultimate, they are not matters that they have been able, in my view, properly to establish to a degree that will operate on the orders that the Court is going to make.

Section 60CC(3)(j)

1. There has been all too much family violence in the past.  Some of it has taken place in the presence of [X].  This is entirely regrettable, but at least the father has turned his life around.

Section 60CC(3)(k)

1. There is no current Intervention Order between any of the parties so far as the Court is aware.

Section 60CC(3)(l)

1. It is plainly desirable to bring this matter to an end so that the parties can move forward cooperatively in [X]’s life.

Section 60CC(3)(m)

1. The critical matter here is my finding that the father will not abuse [X].  It will be a difficult finding for the mother to confront, but confront it she must.

Other Matters

1. Changeover, in my opinion, should take place at McDonald’s if it is conducted by the maternal grandmother but should otherwise take place inside a Police Station given the mother’s ongoing concerns about the father.

2. Although I have given thought to this, in the end I do not think that the father’s application that the mother undergo hair follicle testing is appropriate.  It is clear, of course, that if the mother is using drugs or, indeed, if Mr A is using drugs in the child’s presence, this is an exceptionally inappropriate course of conduct.  The fact is, however, that the mother has always been the primary carer and is described by the father as a good mother.  She has denied taking drugs directly to the Court.  One might ask, rhetorically, what would happen if hair follicle tests showed a positive outcome.  An order that the mother undertake drug counselling may or may not be complied with.  Even if it was, this would not be a guarantee that drugs were not being taken.  While, of course, the Court cannot in any way condone drug abuse by a parent, the fact is that this issue is likely only to be productive, at best, of a clean drug screen so that the matter is at an end or, at worst, an ongoing dispute requiring constant supervision by the Court.

3. The mother has sought that the injunction on leaving the child with Mr A be removed.  Her reasons to support this were, in my view, insubstantial and specious.  There are significant reservations in the materials about Mr A which neither the mother nor, more particularly, Mr A have done anything to allay.  It is clearly appropriate that the mother not leave the child in the unsupervised presence of Mr A.  

Conclusion

1. The parties will need to identify the McDonald’s restaurant and the Police Station at which changeover is primarily to take place.

2. The Independent Children’s Lawyer set out in final submissions a detailed program for the gradual increase of time with the father.  I accept that this proposed program is in [X]’s best interests.  I will request the Independent Children’s Lawyer to draft orders consistent with this judgment as soon as practicable. 

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 3 October 2018