Milling and Robe

[2019] FamCA 1035

FAMILY COURT OF AUSTRALIA

MILLING & ROBE [2019] FamCA 1035

FAMILY LAW – CHILDREN – Interim parenting order – assessment of risk – toxic relationship between parents – extensive litigation.

Family Law Act 1975 (Cth) ss. 60B(1), 60B(2), 60CA, 60CC(1), 60CC(2), s60CC(3).

Deiter & Deiter (2011) FamCAFC 82

APPLICANT: Mr Milling

RESPONDENT: Ms Robe

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 654 of 2013

DATE DELIVERED: 13 December 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 12 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bowler

SOLICITOR FOR THE APPLICANT: Martin Robinson Solicitors

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Services Commission of South Australia

Orders

1. That paragraph 3(f)(v) of the order of 15 December 2014 be varied such that the child X’s time with the father in the event of no agreement between the parties commence at 6:00pm on the last day of Term 4 in odd numbered years and at 6:00pm on the Friday 7 days after the conclusion of Term 4 in even numbered years.

2. That X spend any remaining holiday days after 6:00pm on the last Friday of the Christmas school holidays with the mother.

3. That in addition to the orders made herein on 15 December 2014 by Judge Cole:

   a)That neither party nor any agent on their behalf attend at X’s school after 12noon on any day that X is to go into the care of the other parent SAVE AND EXCEPT on any day when the school may schedule a specific event to which all parents are invited; and

   b)That in the event that X is unwell to the extent of not being fit to attend at school on any day when she is due to go into the care of the other parent the parent with the care of X ensure that:

   i)They provide to the other parent a “screen shot” of a medical certificate by 12noon that day confirming X’s illness and specifying the illness; and

   ii)Effect a handover at Hungry Jack’s at Suburb C at 6:00pm or such other time as agreed in writing unless the illness is of such severity that she is unable to be handed over that day.

4. That upon reasons for judgment being delivered in writing, the Independent Children's Lawyer provide a copy of the order of 15 December 2014, this order, a copy of the reasons for judgment and a copy of the short form Section 62g report to the Principal of D School.

5. That directions including as to the question of a listing for a “Rice & Asplund” threshold argument be adjourned to 30 January 2020 at 9:30am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Milling & Robe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 654 of 2013

Mr Milling

Applicant

And

Ms Robe

Respondent

And

INDEPENDENT CHILDREN'S LAWYER

REASONS FOR JUDGMENT

1. This matter comes back before me for judgment with respect to interim issues that were canvassed by way of submissions yesterday.  As a starting point, it is important to remind the parties in this matter of the objects and principles underlying Part VII of the Family Law Act.[1]  Section 60B(1) of the Act sets out the objects of Part VII as follows:

   “The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.”

   [1]Family Law Act 1975 (as amended)

2. The principles that underlie those objects are set out in Section 60B(2) of the Act in the following terms:

   “The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;  and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. The next relevant section of the Act Section 60CA which is in the following terms:

   “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

4. Section 60CC directs the Court how to determine what is in a child’s best interests in the following terms:

   “(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).”

5. Section 60CC(2) is headed “Primary Considerations” and is in the following terms:

   “(2)The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

   (b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. Section 60CC(2A) follows section 60CC(2), and explains that:

   “In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”

   That, of course, is the need to protect the child.

7. Section 60CC(3), which I don’t intend to read out in its entirety, sets out the additional considerations that the Court is to take into account insofar as they are relevant to each particular matter., I am mindful of all of the matters set out in section 60CC(3)(a) through to section 60CC(3)(m).

8. The Court is required to consider the competing proposals of the parties and then make a determination either at interim level, which we are doing now, or on a final basis.  A final order has been made previously in the life of this matter.  It must then weigh up the positions of each of the parties taking into account the factors to which I have referred and make a determination.

9. By way of background, litigation commenced in these proceedings in 2013 when X was aged three years.  She is now nine and a half years old.  The first judgment in the matter was that of His Honour Judge Cole on 15 December 2014, and in the body of His Honour’s reasons he expressed certain concerns which are still relevant today.  The evidence in that trial included allegations that X was at risk of harm.

10. In [110] and [111] of His Honour’s judgment he said:

    “110.I do not consider the mother has made her case out in respect of these allegations.  I accept that the mother has rightly conceded that the evidence falls short of establishing any unacceptable risk.  She does not however resile from her belief in her interpretation of what the child said.

    111.I therefore accept the submission of the Independent Children’s Lawyer that the mother’s lack of insight means that she would benefit from therapeutic support and would make an order as sought by the Independent Children’s Lawyer.”

11. He expressed concern about the ability of both of X’s parents to cooperate and provide stability for her, at [208] to [210] inclusive where he said:

    “208.Each party in the course of the trial has displayed some significant flaws.  It is critical for their daughter that they address these and, in particular, examine ways in which they can make the business of parenting work.

    209.The Independent Children’s Lawyer notes the recommendation of Ms E that the parties would benefit from undertaking therapy to fix their parenting relationship and improve their communication and submits that an order directing the parties to do so would be in the best interests of the child.

    210.I accept that submission and consider that each of these parties owes it to their daughter (who loves them both) to do all they can to ensure that this little girl can transition between their homes without the hostility and conflict that has occurred to date.

12. He went on to say in [247], [248], [250] and [251]:

    “247.Each party has come to the Court with significant issues.  I have commented on my concerns about the father’s answers in the course of cross-examination when being questioned about his violence towards the mother.

    248.I have also commented on the mother’s unfortunate response to the disclosures made by her daughter and her subsequent treatment of that issue including the continuing belief (which does not appear to be supported by any analysis of the facts) that something has occurred.

    250.At the centre of all this is a young four and a half-year-old who, on all the evidence, has a good relationship with each parent.  She is in a position where she can, whilst maintaining her base with the mother and her extended family, enjoy the love and attention that her father and her paternal family can give her.

    251.It is up to the parents as to whether or not they are prepared to give her that gift and set aside the differences so that she can move between their houses without conflict.

13. His Honour, taking into account those particular concerns, made certain orders contained in the final order, namely [8], [9] and [10] of the order of 15 December 2014.  They are as follows:

    8.The father continue attending upon Dr F and request of him that he receive treatment for anger management until such time as Dr F concludes in writing that the father no longer requires such treatment, with the father to provide a copy of these written Reasons to Dr F.

    9.The mother forthwith attend upon a psychologist to be nominated by the Independent Children’s Lawyer for assessment and treatment in relation to the matters identified by Ms E in her evidence, (including her concerns about the mother’s reaction to and treatment of the alleged disclosures made by her daughter) with the mother to continue to attend upon the psychologist until a psychologist concludes in writing the mother no longer requires such treatment.  The mother provide a copy of these written Reasons to the psychologist, together with a copy of the reports of Ms E.

    10.The parties attend upon a psychologist to be nominated by the Independent Children’s Lawyer and forthwith consult, at their shared equal cost, in relation to the matters identified by Ms E in her evidence stressing such topics as improving their co-parenting of the said child and their communication as parents of the said child, with the psychologist to be provided by the parties with a copy of these written Reasons.

14. Prior to producing the reasons and the order to which I have referred, His Honour heard evidence from the parties over a total of five days.  Thereafter he heard contravention applications and reasons were given and orders were made with respect to those matters on each of 12 December 2017 and 26 July 2019.  In [95] and [96] of the reasons of 12 December 2017, Judge Cole said:

    “95.Turning to the issue of penalty; I have noted that these parties have been in litigation for some years, involving some two full weeks in Court and having each been the subject of adverse comment.  That largely remains the case.

    96.      There is not a lot to like about the way the parties have behaved.”

15. One of the issues for His Honour at the time was the mother’s non-attendance for counselling as he had ordered.  He ultimately found that the mother had made no real attempt to comply with that order.  The father took the moral high ground with respect to that issue and it was submitted yesterday that he had gone on to see Dr F.

16. Produced to the Court yesterday were four letters from Dr F to Dr H presumably, the father’s general practitioner.  They are Exhibit 5 before the Court in these proceedings.  The letters tell the Court that the father saw Dr F on six occasions some time prior to 30 June 2015, on four more occasions between that date and 15 September 2015, on six occasions prior to 23 May 2019 and some further visits between 23 May 2019 and 27 August 2019.

17. Four letters of report are dated 30 June 2015, 15 September 2015, 23 May 2019 and 27 August 2019.  The first letter refers to the father attending consistently and making good use of sessions which have come to focus on the ways in which he copes with a range of negative emotions contributing to a lack of motivation.  Overall, he describes to Dr F his mood in recent weeks as reasonable and stable and says there have been no difficulties controlling anger despite provocation, most recently when he discovered his ex-partner had made arrangements for their daughter’s schooling without consulting him in contravention of a Court order.  There is no further reference to anger management in that report.

18. In the letter of 15 September 2015, the only reference to anger management is contained in [2]. He reported his mood being stable and not depressed at all for several months. He also reported having no difficulties controlling his temper despite this having been tested on several occasions through ongoing contact with his ex-partner.

19. There is no mention of anger management or anything to do with anger in the third letter and likewise, no mention of anything to do with anger, anger management or treatment at all in the fourth letter of report.

20. Suffice it to say that on the evidence before the Court, neither party took on board the concerns of Judge Cole or made any genuine attempt to learn to work together civilly for the benefit of X.

21. It can be seen from the father’s SMS text messages to the mother shortly upon or at the time of her return from her trip to Country N[2] that he has made no progress whatsoever with anger management since the hearings in 2014.

    [2] Exhibit 2, Document 3 tendered by respondent on 12 December 2019

22. There was a further contravention application hearing in respect of which His Honour delivered reasons on 26 July 2019.  He referred to ongoing concerns in [51], [52], [53] and [54] of those Reasons where he said:

    “51.Proceedings have been on foot in respect of the parenting of X since shortly after she was born.

    52.In previous Judgments I have expressed concerns about both parties.  Those concerns remain.

    53.There does not appear to be any acknowledgement that the ongoing war between the parents of this little girl will do anything other than provide her with a legacy of litigation.  She will look back on her childhood knowing that her mother and father were in court for most of those years arguing about her.

    54.Both parties are intelligent.  Both parties profess they would do anything for their daughter.  Neither party however is prepared to give up the opportunity to have a go at the other.  Both parties have difficulty acknowledging that they each have a role in X’s life.

23. He went on to say in [71] and [72]:

    “71.I have difficulty ignoring the fact that X having made these disclosures and having no doubt been the subject of a great deal of attention from her maternal family and then subsequently having been pulled out of school to talk with the police officers, and regardless of any finding in respect of the alleged incident, had undergone a process which would have had a significant impact on her.

    72.Matters would have no doubt built to a point where in her own mind regardless of the truth of the events she would have had some trepidation about seeing the father.”

24. X has now not seen her father since 13 July 2019, a period of five months.  The father has now filed an Initiating Application seeking to set aside the final orders of 15 December 2014.  He wants X to live with him, and to spend time with her mother.  He also wants sole parental responsibility.  They are the major orders he seeks to which I refer.  There are numerous specific issues orders.  The mother in her response wants the orders discharged, wants sole parental responsibility for X and wants X to see the father only in a supervised situation.

25. Both parents seek interim orders.  For the purposes of these reasons, I will only refer to the major interim orders sought.  On the father’s side, he seeks that the mother forthwith deliver X up to him, that upon her being delivered to him, she live with him for a period of 30 consecutive nights and spend no time with her mother and that the mother be restrained from attending at any school or extracurricular activity and communicating in any way with X.

26. The mother also seeks interim orders, the major orders being that X live with her, that she have full parental responsibility and guardianship for X and that the father spends supervised time with X at M Services. Clearly, neither party have read section 60B of the Act to which I have already referred which states that all orders in any Court exercising jurisdiction under the Family Law Act should be orders that provide for a child’s right to have a relationship with both parents to the extent that they are in a child’s best interests and protect a child. She otherwise seeks a myriad of orders in relation to what are clearly intended to be ongoing proceedings. I will return to that issue later.

27. One might ask how it comes to be that X’s parents are still engaged in highly toxic litigation with respect to her parenting five years after the making of a final order and subsequently the hearing of numerous other proceedings including a six-day hearing with respect to property settlement and various contravention and interim hearings.

28. The parties are also involved in litigation in the Magistrates Court where the father is contesting a charge of breaching an existing intervention order.  That was the intervention order that was registered by the mother in South Australia at a time when she and the father were travelling together from Queensland to South Australia many years ago.

29. Notwithstanding the plethora of interim orders sought by each party, the main issue before the Court at the moment, as evidenced by submissions, is the question of whether or not X’s time with the father should resume and if so, on what basis.

30. X is now nine and a half years old.  In circumstances where her voice had not been heard for some time, the Court arranged for an interview of X and observation of her with each of her parents and with the father’s wife.  This occurred on Monday of this week.  The Court expresses appreciation to the Director of the Dispute Resolution Section in the Adelaide registry for facilitating that request, which was only made on Friday last.

1. X’s time with her father has not occurred since 13 July 2019.  On 12 July 2019, X was in her father’s care pursuant to the orders of Judge Cole.  She was, apparently, to be returned to the mother on that day.  Order 3(e)(iii) of the order of 15 December 2014 is in the following terms:

   “3.That the said child spend time with the father as follows:….

   e.         School term holidays:…

   (iii)Following the said child commencing her second year at school, for one week of the school term holidays and each year thereafter;”

2. The 2019 July school holidays commenced on Friday 5 July 2019 and concluded on Monday 22 July 2019.  It would appear, although not stated by either party in evidence that they agreed that X would spend the first week of the holidays with her father.  The order is silent on hand over times.  In [64] of the mother’s affidavit filed on 28 November 2019, the mother said, inter alia:

   “64.On the afternoon of 12 July 2019 Mr Milling withheld X from me.  He was court ordered to return her to me at 3pm at Hungry Jack’s Suburb C.  As I was at work I asked my aunty to pick up X for me.  My aunty recalled that she was at Hungry Jack’s from 2.45pm to 5pm.”

3. The father said in [46] of his affidavit filed on 4 December 2019:

   “46.I refer to paragraph 64.  I did not withhold X from the Respondent Mother.  The handover was due to take place at 5:00pm in accordance with the routine practice which we had adopted on numerous occasions for school holiday handovers.  There was no person in attendance at Hungry Jacks at around 5:00pm to collect X…”

4. I am unable to make any finding as to what time had been agreed.  As I have noted, the order was silent as to time.  The parties are in dispute, with the mother saying it was supposed to be at 3:00pm and the father at 5:00pm.  The fact of the matter is, however, that X was in the father’s care on the evening of 12 July 2019.  That was the last day of the first week of the July school holiday period.  The mother apparently phoned the father, or made a phone call to the father’s house.  She said that the father and his wife refused to agree to return X to her.  The father’s affidavit is silent as to what was discussed in any phone call with the mother.

5. What is also fact is that the mother arrived at the father’s house with the police at approximately 8.30pm that night.  The mother was apparently at the side fence.  X at some stage was apparently at the side fence.  The police apparently spoke with X inside the house.  She apparently told the police that her father had assaulted her by lifting her by the neck and pushing her down hard so that she hit her head hard on the floor.

6. Notwithstanding what would appear on the face of it to be what could only be described as an allegation of a very serious assault made directly to police by a child. The police declined to intervene. That, in my experience, would be a most extraordinary outcome if the police held genuine concerns for the safety and well-being of a child, even in circumstances where they do not have authority under the Family Law Act to enforce orders. They do however have a general duty of care to members of the public to ensure that they are not at risk.

7. The following day, the father’s wife telephoned the mother and allegedly asked her to pick up X.  The mother deposes in her affidavit in [65]:

   “The next afternoon [Ms Milling] phoned me and asked me to pick [X] up urgently from the [J Police Station] as the assault had occurred the night before.”

8. The father says in [49] of his affidavit filed on 4 December 2019:

   I refer to paragraph 65.  I was present when my wife spoke to the Respondent Mother by telephone regarding arrangements to pick up [X] that day.  There was no suggestion of the collection occurring “urgently”.  There was no urgency other than the fact that the Mother had failed to collect the child [X] in a timely fashion and in accordance with long-standing arrangements.  There was no assault and accordingly there was no urgency.

9. The mother collected X from the J Police Station.  They briefly visited a friend, and the mother then took X to the B Hospital.  The discharge summary, following upon X being examined by a doctor, and dated 13 July 2019 at 16:51 was in the following terms:

   “[X] presented to The [B Hospital] Emergency Department with SINGLE TRAUMA - CONTUSION/SOFT TISSUE INJURY - HEAD AND RIGHT LITTLE FINGER AFTER PUSH/LIFTED BY FATHER DURING ACCESS VISIT YESTERDAY, RETURNED TO MUM TODAY AND TOLD HER.  PAIN BACK OF HEAD AND LITTLE FINGER.”

10. The history in the document is set out as follows:

    “Child States she was lifted by neck and pushed backwards by father last night hitting back of head on floor and hurting right little finger.  Father refused child to go home as planned yesterday and police made aware by Mum.  Mum collected her at Lunch time today and that is when child told Mum what had happened.  Mum called police who advised PED.  EXAMINATION: Head injury examination NAD except mild headache and right little finger soft tissue injury.”

11. I understand NAD is an acronym for No Abnormality Detected.

12. Continuing on:

    Consultant examination of child found no other injuries or bruises on Child’s back chest, legs, or neck.  INVESTIGATIONS: x ray finger.  IMPRESSION: soft tissue injury to right little finger and minor head injury.  TREATMENT: written and verbal advice given to Mum for minor head injury, Referral made to CARL in regards to incident.  Over the counter analgesia and gentle exercise for finger.  PLAN ON DISCHARGE: return to PED if RED FLAGS.  Follow up with child abuse helpline as advised by police.  Return if any concerns.  MEDICATION ON DISCHARGE: over the counter analgesia.

13. There is nothing of further significance in that document.

14. The allegation was reported to the child protection department and as I say it was an allegation of serious violence.  Neither the police nor the Child Protection Department have taken the matter further.  The police did not remove X from the father’s home on 12 July 2019.  It appears that by 16 July 2019 the police had advised the mother that they did not intend to further investigate the matter.  The father has not been contacted by either the police or the Child Protection Department regarding the matter.  Nevertheless, X has not seen her father since then, other than on Monday of this week.

15. It is a very unsatisfactory and unfortunate state of affairs for X.  X is not a baby, she is nine and a-half years old.  She was described as anxious by the family consultant.  As noted, the family consultant had the opportunity to speak with X on Monday of this week, and then observe her with each of her mother and her father, and also the father’s wife.  Reading from [1] to [13] of the report under the heading “Interview with X” the family consultant says as follows:

    “1.During interview, [X] presented as anxious, although engaged in a chatty manner when talking about her interests.  Throughout the interview, she remained holding a sensory toy, which the mother had provided.  Overall, informal observations suggested that [X] appeared within her normal development functions, appearing to be a tall young person likely to be in the above average percentile for her height.

    2.[X] was able to identify family members in both of her parents’ households.  Initially she appeared to speak negatively of her father and [Ms Milling], adding that her father is “always mean” and “[Ms Milling] thinks it’s funny”.  [X] clarified that her father is “always mean about mummy”, such as saying, “nanny and mummy (are) going to be homeless on the street…nanny’s going bald.  mummy’s fat”.  [X] reported that such comments upset her because, “(I) love mummy.”  [X] later acknowledged, “(I) love dad, but don’t really like him”.

    3.[X] reported that her father, “says things until I tell him…scared he will hurt me if I don’t…he’s hurt me before.”  [X] clarified that her father “questions me all the time” and then felt “confused”, as he “tells me it didn’t happen,” and that “[Ms Milling] didn’t know as she wasn’t there”.  [X] seemed confused, stating that she could “not exactly remember what he (father) say” but reported, “he says a lot”, generally “rude things about my family.”

    4.[X’s] report on the incident where she stated her father had hurt her, appeared to follow a “mix up” regarding the hand over time.  [X] stated that her father had taken her to “Hungry Jacks” and then took her home when her mother did not arrive.  She stated her mother then arrived at her father’s home with the police.  [X] reported that her father “carried” her inside and “threw me on the ground and (I) hit my head on the floor.”  [X] was unable to recall the detail of how she was carried or thrown, but became upset and stated that the “police did not believe me…my mummy and nanny believed me, they know I don’t lie.”  [X] could not recall why she thought that the police had not believed her, but confirmed this was not something the police had told her.

    5.[X] reported that the following day, [Ms Milling] took her to the police station as “daddy was crying and said he couldn’t look after me anymore.”  She added that her father had given her a “special thing” and that this was the last occasion she had seen her father.

    6.[X] reported that she still wanted to see her father, but agreed she was feeling “scared” about seeing him today, as she had not seen her father since “June or July”.  [X] initially suggested that she spent time with her father at “the park, bounce, latitude or fun place” considering that in a public area her father would not be “rude”.  [X] added that her “friend” had been to court, and suggested that she could see her father at a “place people go to”, as did her friend.  [X] could not recall the name of this place, but her description appeared to reflect that of [M Services].

    7.[X] was asked how she would feel if she returned to spending over night-time with her father.  She reported that she would feel scared.  On a rating scale of zero to ten with ten being happy, and zero being scared [X] score this “two” out of ten meaning that she would feel somewhat scared.  [X] then added, “I want to see daddy like it was before it changed.”  [X] confirmed this as being alternate weekends with one overnight in the intervening week, rather than the current two nights in the intervening week.

    8.[X] stated that her mother had spoken to her about the visit to court today and read the book about “someone like you (the writer)”.  [X] considered that she and her mother wanted the same things and that this was likely because “she (mother) loves me and wants me to be safe.”  The writer was curious if her mother thought she was unsafe, and [X] responded, “unsafe at daddy’s…mean things…getting hurt.”

    9.[X] seemed animated whilst discussing her half siblings (father’s children), and named a number of activities that she enjoyed doing with them.  She stated that she loved her brothers and sister and missed seeing them.  [X] stated that she shared a bedroom with her half-siblings and enjoyed it when they all woke up together, adding that she preferred to share a bedroom “it makes me happy, I don’t feel scared with them.”

    10.[X] confirmed that her father “doesn’t hurt my brothers and sister” but added, “(I) think he hurt [Ms Milling] she took us all to [Ms G’s] (mother of father’s partner) house” for one night, stating this incident as occurring prior to [Y] being born.

    11.[X] stated that her father and [Ms Milling] had called her and her family “liars”.  [X] referred to an incident at “hockey”, where [Ms Milling] had arrived with her bag to take her home, but stated that she had wanted “to go with nanny”.  [X] stated that [Ms Milling] was “sticking keys into nanny.”  [X] confirmed that she had not directly seen the incident, but added “nanny said.  (I) believe nanny.”  [X] further added that [Ms Milling] had said that her mother was “not a psychologist…nanny (is) not a fashion designer” reporting that this was untrue.

    12.[X] considered that her parents did not like each other, but stated that she “never sees them together…only when I was two…I don’t remember that.”  [X] acknowledged that her maternal grandmother and mother had spoken about the father, but appeared defensive adding, “They don’t say mean things, just ask questions…don’t call them rude names.”

    13.[X] was asked what the most important thing she wanted to share, which she stated “stop hurting me, stopping saying bad things about mummy, I just want to be safe.”

16. It was notable that X did express concern about her father being mean to her mother.  That was ably demonstrated by the father’s appalling messages to the mother on her return to Australia after the Country N trip.  Copies of those messages form part of Exhibit [M]3 to the mother’s affidavit filed on 28 November 2019.  I do not intend to read them out but they do confirm what X told the family consultant and also illustrate that the father has not addressed the concerns of Judge Cole regarding anger management or respectful co-parenting at any level whatsoever in the last five years.

17. I am not overly concerned about X’s allegation of violence.  It is highly unusual that a child of X’s age would not be able to remember details of a serious assault on her that allegedly occurred as recently as five months ago.

18. The matter had apparently been discussed at the very least with her mother, with the mother’s friends Ms K and Ms L (as per Exhibit [M]6 to the mother’s affidavit filed 28 November 2019), the maternal family, the police, the B Hospital and various teachers at school.  The police took no action after talking with X.  The B Hospital notes only disclosed a mild headache and right little finger soft tissue injury, which seems incongruent with the seriousness of the allegation.  The treatment plan only involved over the counter analgesics and gentle finger exercises.  The B Hospital also apparently referred the issue to CARL, but there has been no response from the Child Protection Department.

19. Whatever happened, it must have been extremely distressing for X and on the evidence, completely unnecessary.  I am not surprised that she expressed the view about loving but not liking her father.  She expressed that she still wanted to see her father and came up with some ideas as to how and where.

20. I am concerned that she referred to an incident involving her step-mother and maternal grandmother that she clearly only knew of because of what her grandmother had told her.  She referred to wanting to feel safe and to not wanting to be hurt.  The report does not go further in exploring what X may mean by those comments, except as they are illustrated in the earlier paragraphs.

21. The family consultant then observed the interaction between X and each of her parents, and also the father’s wife.  The Court specifically ordered that an observation of interaction be included as often it is far more illustrative than an interview.  Paragraphs 15 to 18 of the short report related to the interaction between X and her father as follows:

    “15.[X] entered the room initially with her head lowered, and eyes down and made a ‘sniffing’ sound.  The father was seated and stated, “it’s all right darling”, held his arms out and [X] walked over and engaged in a physical embrace and a ‘kiss’, proceeding to sit on her father’s lap for the duration of their one to one time in the observation session.

    16.The father appeared to initiate the connection by asking questions about topics such as ‘sports, school and holiday’ making a comment on the necklace she was wearing, which [X] confirmed she got on her holiday.

    17.The interaction continued with reciprocal questions, which appeared to seek to ‘fill’ the gaps of their relationship, and further extended to updates such as changes within the family.  The father updated [X] on her half-siblings, which appeared met with curiosity and interest, with intermittent laughter at the father’s description of their progress.  [X] also spoke about her maternal cousins, adding that she had met a paternal cousin at the pageant and described how she had celebrated her mother’s birthday; the father’s response appeared open stating “oh, yeah, you had a good time?”

    18.The father and [X] were noted to be jointly holding the ‘sensory toy’.  [X] asked after [Ms Milling’s] pregnancy, appearing curious about the gender of the baby.  The father asked if she was sure, that she wanted to know the gender, indicating that they had been waiting for an opportunity to share this with her.  The father further suggested that she was welcome to come to one of the “ultra sounds” and confirmed that [X] would have another brother.  He remarked that she might be disappointed, stating, “(I) know you wanted a sister”.

22. I am not surprised that X approached the observation with what was clearly some level of trepidation.

23. The interaction however seemed to become far more natural and relaxed as it progressed.  There was nothing in the report of the family consultant relating to the observation between X and her father that would suggest other than a loving relationship and a genuine interest in her relationship with her father and her wider paternal family.

24. Likewise, the observations of X with her mother were unremarkable.  It was described as a different type of interaction, but not one that suggested any level of distress for X.

25. The recommendation of the family consultant was that time should resume.  Of note were the comments of the family consultant as to the risk of X having to choose one side or the other at some stage if tension does not reduce.

26. The mother says that X is at risk of harm in the father’s care, to the extent that she could be fatally harmed by him.  This is an interim hearing.  Allegations of abuse must not be ignored.  The Court, however, is called upon to assess whether a child is at risk based on the evidence before the Court that is untested.

27. That evidence is frequently in dispute at an interim hearing and findings cannot be made in those circumstances.

28. This is the case in this matter.  The mother’s allegations of a serious assault by the father upon X are denied by him.  There is no doubt an incident occurred at the father’s house in which X was involved.  The incident was discussed by X with various people after the event.  Whatever happened clearly upset her very much.  There is little doubt that one of the matters that must distress X greatly is the inability of her parents to work together for her good.  She continues to be in the middle of and an avenue for disputes between her parents.

29. Neither parent appears to have the ability to attribute any responsibility for the disputes to themselves.  Their self-righteous attitudes with respect to their own views and behaviours are immature and detrimental to X’s well-being and development.  The result of their ongoing toxic relationship is the denial of a loving and carefree childhood, to which X and any other child should be entitled, noting that any childhood has to cope with the usual vicissitudes of life at any age.

30. The Independent Children’s Lawyer summed up the main issue that led to the cessation of X’s time with her father helpfully as follows:  There was a critical incident on 12 July 2019.  X had holiday time with her father.  The father said he made arrangements to return X to the mother at the usually agreed time and at the place specified in the order of Judge Cole.  The mother did not attend.  She said that the agreed time was earlier.  The mother phoned the father’s house.  The mother then attended the father’s house with police.  The father says X was injured at that time by the mother trying to pull her over the fence.

31. As submitted by the Independent Children’s Lawyer, a major question that arises is why the father did not just agree to return X to the mother either later on 12 July 2019 following upon her phone call, or at least when the police arrived.  If that had occurred there simply would have been no incident.  The father’s version of events begs the question of why X was near the fence if she did not want to go home with her mother.

1. This incident should never have occurred.  The parties are surely capable of arranging at the start of holiday time the exact time for the conclusion, if necessary, in writing.  Two wrongs do not make a right, as the saying goes.  This incident occurred because two parents behaved badly.  It was open to the mother to suggest a handover on 13 July 2019 rather than attend with police at 8.30 pm in the middle of winter.  X is of an age and inhabits a world where she knows what each of her parents want her to say.  That requires her to do all she can to keep herself emotionally safe to skate over that thin ice.

2. In considering the question of risk the Full Court of the Family Court said in the case of Deiter (2011) FamCAFC 82 at [61]:

   “The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”

3. I am satisfied that an incident occurred at the father’s home on 12 July 2019.  I am not satisfied on the evidence, including what X told many people, that the father assaulted X during the incident.  I am certainly not satisfied that he intentionally caused any injury to X.  I am satisfied that in some way she ended up with a headache and a sore finger.  I am not satisfied that X is at risk of the father harming her physically.  I am satisfied that there is a level of risk of the father distressing X by saying and allowing others in his household to say hurtful things about her mother, who she loves dearly.

4. I am also satisfied that she is at a level of emotional risk from being exposed to what can only be described as her mother’s histrionic and melodramatically exhibited dislike of the father, bordering on hatred.  There is no doubt X loves her father dearly.

5. Exposure to these risks is likely to have a severe impact on X’s emotional and psychological well-being during her developing years that may well result in X suffering mental health issues in her adult life.  The behaviours must stop for her sake.  It is of particular concern, as has been noted by Judge Cole, that the mother, a trained psychologist, has not learned more from her training and experience in the workplace.

6. I find that the risks to which I have found X to be exposed would best be managed by a return to the terms of the existing order of 15 December 2014.  The issues have not significantly changed since those contained in the evidence before Judge Cole in the 2014 proceedings.  I see no benefit to X in changing the existing orders.

7. It is up to the parties to ensure that X’s time with each of them during this Christmas holiday period is well-managed and enjoyable for her.  I note that X is to spend half of this Christmas holidays with each parent as agreed, but if no agreement, on a week about basis with the time with her father to commence in the first week in even-numbered years and in the second week in odd-numbered years.

8. In light of her having not spent time with her father since July of 2019, I consider that it would be appropriate for that order to be reversed such that her time with her father commence now and operate on a week about basis with a specified handover time of 5:00pm on a Friday to 5:00pm on the following Friday.  That will result in X spending the last week of the 2019/20 Christmas school holidays with her mother.  She will, pursuant to this order, also spend time with her from 5:00pm on 24 January 2020, which is that last Friday, to the commencement of school on 28 January 2020.

9. The time provided for in paragraph 3(a) of the order of 15 December 2014, which is the alternate weekend time, will resume on 31 January 2020 at 5:00pm. That in paragraph 3(d), which is the intervening week time, will resume on 5 February 2020.  I am also concerned as to handovers.  It is simply not tenable for the school attended by X to have taken upon itself to determine whether the mother will comply with the terms of the order of Judge Cole.  To avoid any misunderstanding, it is the mother who is bound by the order, not the school.

10. I consider that X’s emotional safety will be best dealt with by an order preventing the mother and any agent of the mother from attending at X’s school after 12 noon on days she is due to go into her father’s care.  That is a matter that was not canvassed during the hearing.  I also consider that in the event of X not attending at school on a day when she is due to go into either parent’s care pursuant to existing orders, that the parent who has the care of X provides a screenshot of a medical certificate for that day to the other parent by no later than 12 noon on that day.  I am also of the view that this is perhaps a matter that should be listed for a Rice & Asplund argument before going further.

11. For those reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 13 December 2019.

Associate:

Date: 30 January 2020