MILLWOOD & MILLWOOD
[2019] FamCA 594
•23 August 2019
FAMILY COURT OF AUSTRALIA
| MILLWOOD & MILLWOOD | [2019] FamCA 594 |
| FAMILY LAW – CHILDREN – Parental responsibility – Where the mother and father each seek sole parental responsibility for the child and for the child to live with them – Where in the alternative the father seeks a shared care arrangement – Where the mother seeks that the child spend no time with the father – Where the Independent Children’s Lawyer (“ICL”) supports the orders sought by the mother – Where the father has been subject to criminal proceedings regarding alleged sexual abuse against a minor – Where the mother believes that the father has sexually abused the child – Where there are various family violence allegations made against the father by the mother –Where the mother has always been the child’s primary caregiver – Orders made in similar terms to those proposed by the mother and ICL. FAMILY LAW – COSTS – Where the ICL seeks an order for costs against each of the parties – Where the proceedings were particularly complex – Where significant court time was expended on the proceedings – Where the complex nature of the proceedings was a result of the parties’ behaviour – Where the Court found it was just to make an order for costs – Application granted – Orders made for each party to pay the costs of the ICL in an equal share. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65DAA, 117 |
| Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Mr Millwood |
| RESPONDENT: | Ms Millwood |
| INDEPENDENT CHILDREN’S LAWYER: | Blumberg Family Lawyers |
| FILE NUMBER: | MLC | 9337 | of | 2014 |
| DATE DELIVERED: | 23 August 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATES: | 11-14 December 2018 and 18-19 December 2018 |
| REPRESENTATION |
| COUNSEL FOR THE APPLICANT: | Mr Gardiner as a direct brief |
| COUNSEL FOR THE RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE RESPONDENT: | Barry Nilsson Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Blumberg Family Lawyers |
Orders
The following parenting orders are made in relation to the child Y born … 2011.
All previous parenting orders be discharged.
Parental Responsibility
The mother shall have sole parental responsibility for the child.
Live with
The child shall live with the mother.
Spend time
The child shall spend no time with the father.
School
The mother shall sign all documents and do all things necessary to authorise the school at which the child may from time to time attend;
(a) to furnish the father with copies of all school reports, notices and advices concerning the child and any activity involving the child; and
(b)to make available copies of any school photographs of the child to the father at his expense.
Health
The mother shall:
(a)notify the father immediately of any major illness suffered by the child and any hospitalisation of the child
(b)make available to the father copies of any medical report or reports that may be sent to the mother in connection with such illness or hospitalisation; and
(c)authorise any hospital in which the child may be admitted and any medical practitioner under whose care the child may be to give such information to the father as he may request.
Professional assistance
The mother shall within 14 days make the necessary arrangements to obtain treatment for the child from a clinical psychologist, excluding Ms C, in order to assist the child to deal with any mental health issues, whereupon such treatment should commence as soon as possible thereafter and continue as recommended by the psychologist.
Pursuant to section 121 of the Family Law Act 1975 (Cth) (“the Act”) the Mother shall provide a copy of Dr D’s expert report and the Reasons for Judgment to the psychologist.
The mother shall within 14 days the make necessary arrangements to obtain an assessment from a psychiatrist in order to assist her to deal with her excessive obsessional anxiety and possible paranoid beliefs as identified by the Court-appointed expert, Dr D, whereupon such treatment should commence as soon as possible thereafter and continue as recommended by the psychiatrist.
Pursuant to section 121 of the Act the mother shall provide a copy of Dr D’s expert report and the Reasons for Judgment to the psychiatrist.
Restraints
The parties are restrained from denigrating the other party or members of their respective families in the presence or the hearing of the child and will remove the child forthwith from the presence of any third party who denigrates the other parent.
The mother be restrained by injunction from discussing any aspect of the proceedings, including any judgment or orders, with the child.
Courtesy
In the event that either party has a change of contact details, they shall forthwith provide the other party with details of such changes.
Explanation
The mother arrange without undue delay for the child to meet with the Independent Children’s Lawyer (“ICL”) and the child’s psychologist to explain these orders and their effect to the child.
Costs
Within 60 days each of the parties shall pay to Legal Aid New South Wales the sum of $7,422 being their one-half share of the costs of the ICL as assessed and fixed by the Court.
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 Millwood & Millwood 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 SYDNEY |
FILE NUMBER: MLC 9337 of 2014
| Mr Millwood |
Applicant
And
| Ms Millwood |
Respondent
REASONS FOR JUDGMENT
Introduction
Y (“the child”) is eight years of age. Her parents are Mr Millwood (“the father”) and Ms Millwood (“the mother”).
The parents separated in July 2014 when Y was just over three years of age. They have been engaged in disputation about the parenting arrangements for Y ever since. Their dispute has caused the child to become involved with police, doctors and various public authorities including hospitals, behavioural scientists and lawyers. There was a final hearing over nine days in the Federal Circuit Court. The present hearing in this Court continued over six days.
The mother has formed what appears to be an unshakeable view that Y has been sexually abused by the father. She seeks orders that the child live with her and spend no time with the father. The father denies that he has abused the child in any manner and seeks orders that the child live with him either primarily or in a shared equal time arrangement.
Applications
The mother seeks orders in virtually the same form as those sought by the Independent Children’s Lawyer (“ICL”) and these are, in effect, as follows:
·The mother have sole parental responsibility for the child
·The child live with the mother
·The child spend no time with the father; and
·Various orders in relation to school, health, counselling, information and mutual non-denigration restraints.
The mother also seeks an order which would require treating behavioural scientists to be provided with the Reasons for Judgment.
Annexed at Annexure “A” to these Reasons are the detailed orders sought by the mother and the ICL.
The father seeks orders to the following effect:
·The father have sole parental responsibility for the child
·The child live with the father
·The child spend time with the mother during school terms each alternate weekend from after school Friday to before school Monday and one half of all school holidays, as well as special days as specified; and
·Various restraints and orders about Y’s health.
OR IN THE ALTERNATIVE
· The mother and the father have equal shared parental responsibility for the child
· The child live with each of the father and the mother on an alternate week basis and on special days as specified; and
· Various orders about school and health, changeover and restraints against the mother.
Annexed at Annexure “B” to these Reasons are the detailed orders sought by the father.
Background
There are allegations that between 1987 and 1992 the father sexually abused a boy, Mr F, when he was between six and ten years of age. I shall refer to this again below.
In 2000 the parties commenced their relationship.
In 2003 the parties commenced cohabitation.
In 2005 the parties were married.
In 2008 the father was charged with sexual assault of a child under the age of ten years. The father went to trial at the District Court of New South Wales at Suburb Z. The jury was unable to reach a verdict.
In 2011 Y was born.
The mother said that in October 2012 she saw the father stroking Y’s bottom over the top of her pyjama pants and that on another occasion in late 2012 she observed the father laying on his side stroking Y’s bottom repetitively while she slept.
The mother said that in late 2012 the father shook with rage and punched the pantry door when frozen bread fell out when he opened the freezer. She said that the father said to her:
You fucking cunt, you do not even know how to pack the freezer. This is your fault, pack the freezer property [sic]. Get Y’s food out of here so I can fit some things in here.
Following this argument the father left the home for two days.
In December 2012 the father called the mother “a fucking cunt” because some toys were on the lounge room floor. He then began shouting “Fuck, fuck, fuck!” Y was in the room at the time and she shut her eyes and put her hands over her ears.
The mother said that in 2013 the father said to her “You’re an arsehole, fucking cunt” and that Y put her hands over her ears.
The mother said that in February 2014 the father began shouting at her about a toaster and a sandwich maker which were left on the kitchen bench. She said that the father said to her: “You fucking cunt, I told you not to leave this stuff on the bench” and he then grabbed a large kitchen knife and threw it towards her. The mother said that Y was present and that she put her hands over her ears and said “Stop daddy stop”.
The mother said that in mid-March 2014 she heard the father demanding kisses from Y on the lips. The mother said that the father then pulled Y onto his lap and she observed that the father had an erection.
The mother said that in April 2014 it is the mother’s evidence that she saw the father lying on the lounge with Y on his lap and that he was kissing and cuddling her. The mother says that she then observed that the father had an erection.
On 5 July 2014 the parties separated. The mother said that following an argument the father punched the bedroom door while screaming at the mother.
The father denied this and most of the mother’s allegations above.
On 8 July 2014 the father moved out of the matrimonial home and moved in with his sister, Ms E, in Suburb G for a period of approximately three months.
On 10 July 2014 the child commenced spending time with her father five hours each day for three days per week. The father said that the mother “dictated” the arrangements under which she would permit him to spend time with Y. He said that she refused many of his requests to spend time with Y, usually permitting this when it suited her music teaching commitments.
On 30 July 2014, upon the child’s return from spending time with the father, the mother noticed that the child had red raw marks on both thighs near her vagina which were painful for the child. The father told the mother this was from a new life jacket.
The mother said that on 12 September 2014 she observed that the child’s vagina and anus were swollen and red.
The mother said that on 17 September 2014 that she noticed the father’s car in the area where she resided. The mother called the police however was advised that there was not enough evidence for an Apprehended Domestic Violence Order (“ADVO”). The mother then moved with the child to live with her parents.
On 19 September 2014 the father moved back into the matrimonial home.
On 22 September 2014 the mother took the child to a medical centre where she was diagnosed with a urinary tract infection (“UTI”).
On 13 October 2014 the mother attended Suburb W Police Station and obtained a provisional ADVO against the father, returnable at Suburb Q Local Court on 31 October 2014. The mother informed the police about the erections she had observed the father to have when playing with Y.
The mother said that on 14 October 2014 while she was getting her hair done Y said to her “That looks like daddy’s doodle”. The mother then asked some leading questions of Y.
The mother said that on 15 October 2014 Y again mentioned “daddy’s doodle”. I shall refer to these matters again below.
On 15 October 2014 the mother took Y to a medical centre in Suburb W. The mother advised the doctor what Y had said regarding the father’s “doodle” and the doctor advised her to take Y to CC Hospital which she did. Y however, was not examined as too much time had passed following the alleged incident. The hospital made contact with the Joint Investigation Response Team (“JIRT”).
On 16 October 2014 the mother and Y were interviewed by JIRT and Y made no disclosures.
On 17 October 2014 the mother contacted Suburb W Police Station to find out about the ADVO and let them know about the JIRT investigation. The mother says that Constable X said to her “If you make further reports we won’t continue to support your ADVO”.
The mother said that in late 2014 she observed a number of instances where Y made allegedly sexual comments and actions with her Mickey Mouse toy. I shall refer to this below.
On 10 November 2014 Y commenced counselling sessions with Ms C.
In December 2014 the mother reported the further alleged behaviour of Y to the Department of Family and Community Services (“FACS”) Hotline.
On 8 December 2014 orders were made that Y live with the mother and spend time with the father each Monday and Friday for a three hour period at some point between the hours of 10.00 am to 4.00 pm. This time was to be supervised by H Contact Centre. The child spent time with the father in accordance with these orders until February 2014.
On 12 January 2015, it is Ms C’s evidence that, the child disclosed to her that “Daddy showed me his doodle, it got little and big” and “It went big, big and bang”.
On 15 January 2015 the mother was advised that the ADVO had been cancelled.
On 20 February 2015 the child’s time with the father increased slightly.
On 13 August 2015 orders were made restraining the father from dressing, undressing and bathing Y during supervised visits.
On 19 October 2015 the mother and Y attended Dr J, paediatrician, at CC Hospital.
On 25 November 2015 the final hearing in the Federal Circuit Court concluded.
The mother said that in December 2015 the child told her that the father had taken her to a hotel in K Street and they went swimming and were in the hotel room.
On 14 May 2016 the mother took the child to a general medical practitioner (“GP”) in relation to a UTI.
On 8 July 2016 final orders were made discharging all previous parenting orders, that the parents have equal shared parental responsibility, that the child lives with the mother and that the child spends time with the father from 10.00 am to 4.00 pm for three out of four Saturdays and from 10.00am to 4.00 pm on three out of four Sundays. An order was made that if the father obtains from a registered assessor an assessment that his risk of recidivism for sexual assault of a child is low then Y could spend overnight time with the father.
On 4 April 2017 orders were made by consent for the father to spend supervised time with Y each Wednesday for three hours between 3.00 pm and 7.00 pm and each Sunday for six hours between 9.00 am and 5.00 pm. The proceedings were transferred to this Court.
On 25 April 2017 Y and the father commenced spending time supervised by H Contact Centre. H Contact Centre subsequently declined to provide supervision.
On 3 July 2017 consent orders were made substituting V Pty Ltd for H Contact Centre as supervisors.
On 4 October 2017 orders were made to substitute L Group for ICCPL, for Dr D to be appointed as Chapter 15 single expert and for the father to spend supervised time with Y at times provided for in orders made on 4 April 2017.
On 16 March 2018 L Group indicated they were no longer prepared to provide supervision.
On 4 May 2018 time spent resumed with M Group providing the supervision.
On 12 June 2018 the matter was listed for hearing for nine days commencing at 10.00 am on 11 December 2018.
The father continues to live in the former matrimonial home at Suburb N.
Credit
The Father
The father was reasonably responsive to questions in cross-examination. He made some concessions but not in respect of numerous issues which he ought to have conceded. For example, he denied that he had behaved aggressively towards a whole variety of persons including many of the persons who supervised his time with Y as well as officers of the police. Yet reports by such persons contained many complaints about him shouting and yelling at them. Having observed the father giving his evidence over two days and having read the affidavits and tendered material, I prefer the other evidence about this over the father’s denials.
The father denied all the allegations made against him by Mr F. In my view, however, Mr F was a much more impressive witness than the father and I prefer his evidence where it is inconsistent with that of the father. I find myself unable to regard the father as a truthful witness.
The Mother
The mother was not always responsive to questions in cross-examination. She had a tendency to use the opportunity provided by questions to say things which were not responsive but which presumably she perceived to favour her case.
The mother also had difficulty making concessions.
I was not confident that at all times the mother was being truthful.
Ms B Millwood
Ms B Millwood is the child’s paternal grandmother.
She was reasonably responsive in her answers to questions. But I had a sense that she minimised the extent of her hostility towards one of the supervisors of time spent between the child and the father. She denied that she had yelled at the supervisor at a time after the child had been swimming. Yet much later during her cross-examination she said that she apologised to Y because she had upset her by trying to get the towel from the supervisor and she said that she “got a bit louder” because the supervisor would not give her the towel.
Ms C
Ms C is a specialist counsellor and social worker approved by Victims Services of the New South Wales Department of Justice to provide counselling to persons identified as having complex needs. Ms C provided counselling to Y for a period of approximately 12 months.
Ms C appeared to have some difficulty with the process of cross-examination. She was not always responsive and was not always able to focus on the question. Her answers tended to be given in a somewhat circumlocutory manner.
Where her opinions differed from those of Dr D, I have no hesitation in preferring those of Dr D.
Mr F
Mr F was an impressive witness. He was articulate, forthright and responsive. He made concessions readily.
I shall refer to him again below.
I have no hesitation in regarding him as a truthful witness.
Ms P
Ms P is the maternal grandmother. Her affidavit came into the evidence unchallenged.
Ms R
Ms R is the father’s treating psychologist. Her affidavit came into the evidence unchallenged.
Mr T
Mr T is a businessman who engaged the father as an independent contractor to his business between 2002 and 2011. I place very little weight on his evidence which I regard as almost entirely irrelevant.
Dr D
Dr D, clinical psychologist, is the single expert who has prepared a comprehensive report on this family. She was forthright, responsive and professional. Where I refer to her evidence I accept that evidence.
Alleged Sexual Abuse Against Mr F
Mr F and the father lived at adjoining properties when Mr F resided at Suburb G from 1986 to January 1992 when he and his family moved away.
Mr F alleged that the father perpetrated acts of sexual abuse against him on numerous occasions during that period, commencing when he was approximately six or seven years of age. The father strongly denied this.
These allegations became the subject of criminal proceedings brought against the father in the District Court of New South Wales at Suburb Z with the trial commencing on 27 October 2008. The father was charged with sexual assault on a minor. The jury were unable to reach a verdict.
Mr F’s witness statement to the police dated 4 December 2004 included the following.
When he was between approximately six and seven years of age his mother passed him over the fence between their backyards so that he could look at the birds in the aviary at the father’s home. This occurred a number of times. The father would take him to the garage and “Get me to perform oral sex on him by putting his penis in my mouth”. When “[Mr Millwood]” did this to him he would be in different positions. Sometimes he would be kneeling with the father standing, other times he was lying down and he was lying on his stomach with his feet towards the father’s head on which occasions the father sometimes took his penis into his mouth. This was done on the mattress, not the floor. The father made him feel as if he would get into trouble for doing this. It was like it was their secret and that he would “get busted for it, if anything was found out”.
On different occasions the father took him to his house to his bedroom in which there were double bunks and a computer. The father would take his clothes off and take Mr F’s clothes off as well. He remembered being on the bed and the father putting his penis in Mr F’s mouth. Mr F was really interested in a computer game on the father’s computer. The computer game had a “joystick” control. The father would get Mr F to sit on his lap while the father played the game. He would get Mr F to hold his erect penis with his hand and play with him like he was using the “joystick” for the computer game. Mr F preferred to go to the house because it meant he might get to play the computer game.
Once while they were in the house the father took Mr F to the bathroom. They got into the shower naked and as the water was running the father put his penis into Mr F’s mouth. When he was a little bit older, perhaps about nine years of age, Mr F was playing in the bush near his house with his friends. The father appeared, took him aside in a long grassy area, the father opened his fly and took out his penis. Mr F remembered feeling very conscious that they were in an open area and that his friends were still about. He felt really uncomfortable and couldn’t remember whether something sexual happened but he remembered saying “No”. He thought that if someone saw them he would get into trouble. He thought that this was the last time anything happened between the father and him.
During his cross-examination the father categorically denied ever having had a sexual encounter with Mr F.
It is clear from the transcript of Mr F’s evidence in the criminal proceedings that he was able to describe the inside of the father’s house at the relevant time, including the father’s bedroom and bathroom. Mr F said that there were some double bunks on the right of the bedroom and the computer was next to them against the wall that faced the door, and a window was behind the computer.
The father conceded that this description was correct but added “You can see it through the side window”. The father also confirmed that Mr F’s description of the computer and its joystick was correct.
Mr F was asked whether he ever went into the shower and he said “Once”. He described it as just a normal shower, about a metre by a metre with “really heavy yellow glass”. The father said that this was not correct – that they had a “smoky grey” shower screen.
It is clear that three weeks before the criminal trial the father went to that house and with permission of the occupant took some internal photos. One such photo was a photo of the bathroom. But it did not include a photo of the shower cubicle or the glass shower screen. The father agreed that his purpose in taking the photographs was to obtain evidence to show that Mr F’s description of the bathroom and the shower was unreliable. He said that he did not take a photo of the glass in the shower because he was going into someone else’s house and did not want to walk about their bedroom, bathrooms and pretty much stood at the front door. The father denied that he elected not to take a photo of the shower because he knew Mr F’s description was accurate. He said that a person could stand at the front door and see straight into the bathroom including the shower screen.
During his cross-examination by counsel for the father, Mr F conceded that he had made some errors. Firstly, in relation to the shower, he was shown a photograph of a bathroom, which I accept depicted the bathroom at the father’s house at the time and he conceded that the small corner of the shower screen glass was “heavy” but not “yellow”. And after being taken to the transcript in the criminal proceedings which indicated that he was unable to respond to very detailed questions about the bathroom walls and tiles, he conceded that he did not remember much about this bathroom.
Mr F also conceded that he was mistaken when he deposed that the front opening door to the garage was a roller door. He said he had been asked questions about this during each hearing and realised that in fact it was a tilt door.
When pressed about the mattress which he said was in the garage, he said he recalled it as being a single mattress. He conceded he did not know what colour it was but said “it was mostly too dim” for him to know what colour it was. Both the father and his father denied there had been a mattress in the garage.
Mr F conceded that in his complaint he referred to the father by his first name but knew everyone called the father by a shorter version of his first name.
Mr F had deposed that the side door to the garage had a handle and conceded after being shown a photo that it did not have a handle.
Mr F conceded that he was uncertain about the timing and frequency of the instances of alleged sexual abuse against him.
Mr F also conceded that the railings of the paling fence over which he said his mother passed him to the father were on his family’s side of the fence rather than on that of the father. He also conceded that the fence had gaps in it, the suggestion being that instead of having to be passed over the fence he could have gone through the gaps. But he said that the photo of the gaps showed a different area of the fence (from the part over which he was passed by his mother).
Upon counsel for the father referring to Mr F’s mother’s evidence in the criminal proceedings that she had passed him over the fence six times, Mr F said that he could not recall the number of occasions.
Mr F conceded that he had “concocted” a story about drawing on a chalkboard at the father’s house as an explanation to his father about what he had been doing there. Mr F agreed with counsel for the father that there was no chalk or chalkboard at the father’s home.
Mr F’s mother in her statement in the criminal proceedings had said that Mr F had wanted to go over the fence to play the drums. But Mr F said that drums were played at the neighbour’s property and that he never believed the father owned a drum kit. There was also a difference of opinion between the father and Mr F about the colour of the bunk beds in the father’s bedroom.
Notwithstanding these concessions and differences, I have no hesitation in preferring the evidence of Mr F about this alleged behaviour over that of the father. As indicated above, in my view, Mr F presented as a much more impressive and credible witness and was more ready to make concessions than the father.
The father informed Dr S in the context of the 2015 proceedings before Judge Dunkley that his recollection of Mr F was that he was “an odd kind of boy”. Yet in the criminal proceedings in 2008 he said that he had no recollection of Mr F. Also during cross-examination in these proceedings the father was asked whether Mr F as one of the younger children who had played outside on the street, was “a child that had been into your house?” The father replied “May have been at some stage, I can’t recall”.
In the present proceedings the father was asked whether Mr F had been into his bedroom and he replied “He may have been at some stage, I don’t know”. He went on to say that he did not have a 24 hour guard in his house.
In relation to Mr F being able to accurately describe the layout of his bedroom the father said a person could tell the Court the layout of his bedroom without entering the house by looking through the window.
The father was less than forthcoming when asked questions about his ownership of a motor vehicle 1. Mr F had said that the father owned a motor vehicle 1 which was a maroon colour. When asked about this, the father said that Mr F was not correct. After more questions about this the father said “There’s a big difference between a motor vehicle 1 and a station wagon”. He had difficulty conceding that Mr F was almost correct in his assertions about ownership of the vehicle.
The father said that Mr F had manufactured these allegations against him but was unable to provide any credible motive for him doing so.
Mr F’s mother said in the criminal proceedings when asked about helping him over the fence that he was assisted by “[Mr Millwood]”. And there was no uncertainty on her part that when she had passed him over the fence he was assisted by [Mr Millwood] for half the times he went over the fence. Yet in the criminal proceedings, as I have said, the father denied that he had any particular recollections of Mr F.
Counsel for the father put to Mr F that the father said that standing at the front door of his house a person could see straight into the bathroom, the inference being that Mr F could have gained his impressions of the bathroom in this manner. Mr F responded that he had never entered the house through the front door.
Mr F also said that he had never stood outside the father’s bedroom and noted what was in the bedroom.
The allegations by Mr F against the father are extremely serious. Mr F did not appear to me as someone who would make such allegations lightly.
During cross-examination by counsel for the ICL, Mr F said that he had been motivated to give evidence in these and the earlier parenting proceedings “to protect the innocent child”, namely Y.
Mr F also said that he had first informed his parents about the alleged behaviour of the father against him when he was 17 and out of a sense of guilt thinking that what had occurred was his fault. He said this disclosure to his parents had a “big effect” particularly on his mother and that his family spent a lot of time on this. Eventually he decided to go to the police. He said that to keep himself up to the task of going to the police he took a “sick day” off work.
As counsel for the ICL said, why would Mr F put himself through all this if it was untrue. I must say I agree. In my view this enhances the credibility of Mr F.
I am comfortably satisfied, applying the standard of proof referred to in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, that the version of Mr F is what occurred. In my view, nothing about his evidence suggested embellishment or fabrication. And there is no apparent motive for fabrication. Mr F’s readiness to make concessions supported his credibility in my view.
Sexual Abuse Allegations Concerning Y
The mother has alleged that the father has sexually abused Y. As Dr D has also made clear, the mother has an obsessive belief that sexual abuse has occurred.
Dr D has expressed the opinion that it is virtually impossible for anyone to determine whether or not Y has experienced sexual abuse. She has ultimately formed the view, however, that there is a very low likelihood that Y has been sexually abused by her father.
I have referred above to many of the assertions by the mother of behaviour by Y which she said in her view amounts to evidence of sexual abuse. To facilitate understanding of this part of the Reasons I have repeated many of these assertions.
The mother first became concerned in mid-March 2014 when she saw the father while playing with Y demanding kisses from her on the lips. She observed the father to have an erection. She said she did not raise the issue with him because she was afraid of him and thought he would hit her. The mother said that a similar thing happened in April 2014 again when the father was kissing and cuddling Y. She said she was shocked and extremely concerned. She decided to separate from him. She did not believe the father would act on any attraction to Y because she was only three years of age whereas the mother feared that the father had sexually abused Mr F, but she understood that Mr F was six or seven years of age at the time. She thought that Y might be at risk when she reached that age. Despite her concerns the mother did not report this to any authority and continued to permit the father to spend unsupervised time with the child.
In July 2014 upon Y being returned from spending time with the father, the mother noticed “red raw marks on both thighs near her vagina area…”. She raised this with the father who informed her that he had taken Y to Suburb O swimming pool and that the rash was probably caused by a life jacket she was wearing.
In September 2014 the mother noticed that the area around Y’s vagina and anus was red and swollen after she spent two consecutive nights with the father. Approximately ten days subsequently, the mother took Y to her GP. This doctor examined Y and reported “vulva looked healthy”. Y was diagnosed with a UTI and prescribed antibiotics.
On 13 October 2014 the mother attended Suburb W Police Station seeking an ADVO against the father. While there she discussed the alleged erections and her concerns with a female police officer.
The following day the mother said Y pointed to something on television and said “That looks like daddy’s doodle”. The mother said “What looks like daddy’s doodle?” and the child responded “That”. The mother said “Have you ever touched daddy’s doodle?” She said that the child replied “Yes”. She was shocked.
The mother said that on the following day, 15 October 2014, she asked questions of Y including “When did you touch daddy’s doodle?” and “…what did you do with daddy’s doodle?” and other leading questions. The mother took Y to the GP and then to CC Hospital. The GP noted “vulva look red”. The CC Hospital notes indicate Y’s perineum, labia and vagina were all normal. Y was acutely aware of the two examinations.
The next day, 16 October 2014, Y was interviewed by officers of JIRT. Y made no sexual abuse disclosure. Her questioning included leading questions. The mother was informed about the outcome.
The mother said that the following evening Y said to her “Do you believe me mummy?” and that she replied “Of course I do. I just wish you told the ladies as well. Please tell me everything that happened with daddy”.
Dr D said she thought it extraordinarily unlikely that a three year old child, whom JIRT had indicated was unable to distinguish between the truth and a lie, would ask whether she was believed. Despite explicit direction from JIRT not to discuss the issues with Y, the mother did precisely this.
The mother took Y to the GP the following day and repeated this a few days later. On the later occasion Y had another genital examination and the GP reported “vulva looks better”.
As Dr D observed, by this time Y had been subjected to at least two or three conversations with her mother about alleged sexual abuse, some involving leading questions, she had been interviewed intensively by JIRT including leading questions and she had been subjected to at least four genital examinations. She had also previously had her genitals photographed by the mother.
Dr D said that so much attention and preoccupation with genitals and suggestion would have had a significant effect on her subsequent behaviour, beliefs and statements.
What Dr D referred to as “the second set of alleged disclosures” occurred during November 2014. The mother said that on 3 November 2014 Y was playing with a Mickey Mouse toy her father had given her and she heard her say “daddy’s doodle”. The mother said other things about this including that Y examined the toy’s front and back genital area with a mirror and pushed crayons repetitively into those areas.
Dr D said that it was difficult to know what to make of this. She said it could be entirely normative, it could be responsive to the multiple genital examinations and questioning or it could reflect a sexual abuse experience. Dr D thought the play was most likely normative or possibly reflected the intense focus and preoccupation on genitalia.
What followed Y’s behaviour with the Mickey Mouse toy in essence was that Y took her xylophone sticks and at Y’s direction the mother placed a xylophone stick on top of Y’s underwear on her buttocks and Y moved it up and down a couple of times. Then Y instructed the mother to lie down, which she did, and Y placed the xylophone stick on her buttocks and moved it up and down saying “there” in a soothing voice.
Dr D said that this behaviour by the mother was “extraordinary and very disturbing”. She also said it made no sense for the mother to allow Y to involve her in the acting out. She said such behaviour would have been “highly confusing” for Y and that the mother demonstrated enormous leaps in logic to describe such utterances and play as sexual abuse.
At approximately this time the mother arranged through Victims Services for Y to see a counsellor, Ms C.
The mother alleged that Y engaged in further worrying play with the Mickey Mouse toy in November 2014 including references to “doodle”. Allegedly Y mentioned “doodle” to both her maternal grandmother and grandfather.
Dr D thought that by this stage the mother had determined in her own mind that Y had definitely been sexually abused when the father took her overnight in September 2014. Dr D said:
(The mother) was unable to contemplate any alternative explanations for [Y’s] behaviour and became obsessive in her quest to elicit evidence to support her proposition. This means that almost every aspect of [Y’s] behaviour was interpreted as indicative of abuse. The mother has not resiled from this position.
The mother said that in late December 2014 after Y commenced spending supervised time with the father, Y had nightmares. She said Y woke up screaming and crying and referring to “BB the fly”, an expression the mother said that the child uses to describe bad or scary things. The mother said Y, upon awakening from a nightmare, made various references to “BB” including:
·“Don’t let BB take me, he took me away, he took me home”
·“BB took my clothes off”
·“BB took my pyjamas of”
·“He didn’t shave this morning he had whiskers”
·“Don’t let BB get me mummy. He gets me when I go to sleep, I’m scared”
·“BB takes my nappy off”.
Dr D regarded the mother linking this behaviour to sexual abuse as “incredulous”.
The mother’s affidavit contains many further alleged behaviours and utterances by Y which the mother suggests are part of the evidence from which she has formed her concerns and belief about sexual abuse. In my view, it is unnecessary to set these all out. They include more references to “BB the fly”, many references to “doodle”, further references to UTIs, more attendances on doctors, references to being scared of the father and references to the father touching her vagina.
On 28 April 2017 two officers from FACS attended Y’s school and interviewed her. After some time spent asking initial questions, the caseworker commenced to ask leading questions. She asked “I heard you spoke with your mum about private parts”. The record indicates that Y seemed slightly surprised and asked how the caseworker knew about this. She then said: “He (her father) use [sic] to bang me down there on my vagina”. She said it happened when she was a baby then stated she didn’t know when it happened. On the body chart Y drew an arrow to her vagina and said “on the inside”. She also pointed to her hand that she had made into a fist and pointed to a point that was half way between her knuckles and her wrist and said that was how far her father’s fist had gone inside her vagina. The caseworker asked again how old Y was when it happened and Y said she was a baby and that “Mum was there”. She said he touched her lots of times but they moved. The interview also referred to statements by Y to the effect that her mother had told her much negative information about the father. JIRT did not investigate.
In her affidavit the mother also referred to the fact that following separation, when the father had been having unsupervised time with Y he had taken her to various hotels where the child said they had gone swimming and then had a shower in the room. This information was of considerable concern to the mother.
I note in this regard that it was often the case when the father and Y spent time together, even during supervised time, that the father arranged for Y to have a bath or shower. The mother is highly suspicious of this. And, in my view, one could not rule out entirely the possibility of a sinister purpose in this.
In relation to Ms C’s counselling of Y, Dr D was very critical. Dr D said that she formed the view that Ms C had assumed that Y had been the victim of sexual abuse and interpreted most of Y’s behaviours and utterances as indicative of such abuse rather than considering any alternatives. Dr D thought this counselling would have highlighted Y’s sensitivity to, and future responses to, ideas about sexual abuse and her father.
Dr D said that Ms C made the unsubstantiated claim that the sexualised behaviours shown by Y contain language and concepts indicative of having experienced and being exposed to inappropriate sexual behaviour. Dr D said that there is no empirical evidence that there are any specific indicators in children’s play that they have been sexually abused.
Dr D also thought that this counselling further distorted and contaminated Y’s recollection of the past, that this was further distorted by the fact that the mother was present for many of the sessions and that some of the sessions occurred at Y’s home. Dr D also said that Ms C’s reports indicate that Y was spontaneously recalling events from the past in a manner entirely inconsistent with the capacity of a 3 or 4-year-old child to do so.
Dr D said that, consequently, her view was that by December 2015, Y had been exposed to ongoing counselling that was likely to have contaminated her memory and lead to further disclosures and behaviours of Y that were sexual in nature.
Dr D said that:
…this young child has been chronically and repeatedly exposed to vigorous and intense scrutiny and questioning by her mother and ongoing forensic medical examinations. She experienced a counselling process which, in my view, was highly suggestive and leading at an age when she was vulnerable and impressionable. The more recent (2017) disclosure appears to be highly improbable (that the father put his fist in her vagina up to his knuckles) as is the idea that a 6-year-old child could spontaneously recall sexual abuse from when she was a baby, or even as a 3-year-old. The most likely explanation, in my mind, is that [Y] has become sensitised to such matters and intuitively understands that they generate much emotion and attention with her mother and she responds to these emotional cues.
However, and as foreshadowed above, I cannot be entirely confident that [Y] has not experienced sexual abuse.
Dr D went on to discuss risk factors. She said that the father’s criminal history is relevant. She said that if the father was guilty of the alleged offence against Mr F, this “would elevate slightly the risk that he would pose to any other minor”. But she noted that “the alleged incidents with Mr F involved oral sex between an adolescent or young adult and a male child”. She said that there is no particular known link between this sort of offending and digital penetration of an infant or toddler female. In addition, she said that the statistical risk of a biological father sexually abusing his own child, particularly if that father has had ongoing care of that child is relatively low, compared to the risk of sexual offending against a person who is not related to him biologically.
Dr D said that the father has a number of personality features, most particularly narcissistic traits, which may be associated with a sense of entitlement which is seen in perpetrators of sexual abuse. But she said this in and of itself is not an indicator of likelihood of sexual abuse.
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·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
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·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
·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
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.
Subsection 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court cases of MRR v GR (2010) 240 CLR 461 and Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for her parents to have equal shared parental responsibility for her.
This is a case where I am satisfied there has been family violence. Subsection 4AB(1) provides that for the purposes of the Act family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Subsection 4AB(2) provides examples of behaviour that may constitute family violence as including (but not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
Subsection 4AB(3) provides that for the purposes of the Act a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
As is indicated above, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. As indicated above I am satisfied that the father has perpetrated acts of family violence and that the child has been exposed to family violence. I shall refer to this below. Accordingly, in my view, the presumption does not apply. But if I am wrong about this, in my view it would not be in Y’s best interests for her parents to have equal shared parental responsibility for her.
The parents have a dreadful relationship. The mother said that she and the father do not communicate directly and that all communication takes place through their respective lawyers. The last time that they engaged in direct communication was in September 2014.
The father said that there were significant problems in the relationship between him and the mother.
Dr D said that she would not support an order for equal shared parental responsibility because this would continue to expose Y to the risk of ongoing conflict and hostility between her parents. In my view, it would also provide the mother opportunity to continue to indulge her belief about the child having been sexually abused by the father.
In all these circumstances, in my view it would not be in Y’s best interests for her parents to share parental responsibility for her. Consequently only one of them will be awarded this responsibility. I shall refer to this again below.
Section 60CC Considerations
How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations at this point I shall return to discuss these below.
Additional Considerations – s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.
Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child has said many things which are either critical of the father or portray a negative impression of him. I accept Dr D’s views that what the child says about the father is reflective of the mother’s negative view of him.
In all the complex circumstances of this case, I propose to bear this very much in mind when considering assertions about things which Y has said.
Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Dr D said that Y is very closely attached to her mother. Dr D said that throughout the observation session Y was affectionate and drawn towards her mother who in turn was calm and gentle in her interactions with Y. She said that Y sought proximity to her mother, cuddled into her and tended to reference her mother before or during her responses to Dr D. Dr D said Y appeared to be extremely compliant and forthcoming so there was no need for the mother to impose any limits on her. Y said what she likes most about her mother was “when she is kind and loving and not like dad… always gives me hugs... shows that she loves me and lets me sleep in her bed…”
In relation to the father, Dr D said that Y had been unaware that the father would be attending and had expressed reservation about being interviewed. Dr D went on to say nonetheless, when the father arrived in the observation room, Y ran to him and gave him a very demonstrable cuddle. Dr D said during the observation session Y was very physically affectionate towards her father and sought proximity to him. She noted that Y gave her father direct eye contact, initiated physical contact with him and laughed and giggled in response to some of the father’s verbal statements. Dr D said that at one point, however, there was a moment where the father moved or leaned towards Y and Y did flinch and appeared to sit with a rigid back and rebuff his movement towards her. This was at the beginning of the observation and Y tended to relax subsequently.
Dr D observed that Y tended to be very spontaneous and looked relaxed when interacting with her father. She said that there were many times during the interaction where their exchange was light-hearted and clearly enjoyed by Y.
Dr D said that given the father’s express concern that Y appeared to want to tell him something, she asked Y if there was anything she wanted to tell her father. Dr D said Y appeared to struggle with this and then came over and whispered in her ear “I want to tell him about don’t be mean and violent and don’t hurt me anymore”. Dr D quietly asked Y if she would like her to say this and Y said she would not.
Dr D said that apart from this, Y appeared to be very open towards her father and took great delight in the interaction. She said that the father appeared to know Y very well and was appropriately responsive and child-focused in his interactions with her. Dr D said that the father allowed Y to direct the dynamic and that Y displayed no fear or trepidation in her interactions with him.
Dr D said that Y spoke in quite affectionate terms about her paternal grandparents.
But there were also some negatives. Dr D said that Y said “None of the people in dad’s family know what he is like on the inside. Only mummy knows because towards us he is violent”. When Dr D asked Y what she would like to change about her father, Y said “for dad to be a better person….if he shows what he is really like on the inside he could ask for help to be a better person”. Dr D asked Y if she would ever like to go on holidays with her father and she said “I would go on holiday with (him) but (he needs) to promise (her) that (he) will not do any bad things to (her)”.
Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child
The child has not spent any time with her father since mid-2018. Prior to that time she had been spending supervised time only with her father. Accordingly, there has been limited opportunity for the father to participate in making major decisions about the child.
It is clear however that the father is most desirous of having appropriate opportunity to maintain his relationship with the child. He has been involved in litigation concerning parenting arrangements for the child now for many years.
Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother asserts that the father has failed to pay child support or otherwise maintain Y. I am unable to make any finding about this.
Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
Dr D said that if Y were to be moved to live with her father and initially spend no time with her mother, this would likely cause her “significant attachment distress”. She said that Y has not had the experience of such separation from her mother and she thought Y would become very worried, possibly blame herself and exhibit confusion and distress. She said that Y would be very sad, very upset and very anxious because she would be removed from everything which she has known and been familiar with. She said that Y has had the intense preoccupation of her mother who is devoted to her. She said it would be a traumatic experience for Y. Dr D said that Y would be very worried that she had done something wrong and that she would not know what had happened to her mother. Y would also be removed from ready access to her maternal grandparents and I note that she has a close relationship with her maternal grandmother in particular.
Dr D thought that in such a scenario Y would experience emotional, behavioural and academic regression and that there would likely be long term emotional and psychological risks to her.
Dr D also thought that such a situation would terrify the mother to the point where she would be at real risk of not being able to contain her behaviour. Dr D said that the mother’s view that Y has been sexually abused by the father is so fixed that it would be unlikely to be changed by therapy.
Dr D said that she could not predict how Y might cope with such an arrangement in the long term. She said that the advantage would be that Y would be free (to some extent) from the burden of ongoing questioning and examination with respect to sexual abuse allegations. She said that it would also allow Y to restore a normative relationship with her father and members of the paternal family. Dr D said that however, Y would, in her view, most likely continue still to be exposed to the toxic conflict between both parents and might not recover psychologically from the loss of the intense relationship she has with her mother. Dr D also thought that when Y resumed seeing her mother, the allegations and disruption to Y would probably all flare up again.
On the other hand, if orders were made that there be no time between Y and the father, this also would have its risks. Dr D said that Y loves the father and benefits from her relationship with him. She said such a situation would have a deleterious impact on Y’s psychological development. She said that initially Y would suffer from grief and loss. She said that in the medium to long term, Y would wonder whether she had been abandoned by her father and might remain confused and have distorted memories of her father and the paternal family which over time she might internalise. She said that Y might well suffer identity problems because she would have no contact with the paternal side of her family and Dr D said that there would be an elevated risk of psychological disorder. Possibly Y might have difficulty coping in her teenage years and might have difficulty developing long term relationships.
Dr D said that each proposal contains risks for Y, most particularly the risk of psychological distress.
Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is not a significant issue in these proceedings.
Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Dr D said that both parents have significant lapses in their capacity to provide for the needs of Y, most particularly her emotional needs.
In relation to the mother, Dr D said that the mother has become obsessed by the idea that Y has been sexually abused by the father. Dr D said that at an overall level, however, the mother is otherwise apparently well-functioning and shows no other indication of thought disorder or specifically, of delusional thoughts. But Dr D thought it possible that the mother might suffer from a generalised anxiety disorder.
Dr D said that it appears that the mother has an encapsulated delusion with respect to the father and sexual abuse. Dr D said the mother’s thoughts in this regard are illogical at times and rigid and unswayable. She said that the mother displays obsessional thoughts and behaviours about the matter and that this obsessional behaviour appears to eclipse the mother’s parenting capacity in some ways. These include what appears to be an extraordinary lack of insight into the damage which her behaviours have caused and continue to cause to Y. Dr D said the mother’s thoughts on this topic are also rigid and it appears that the mother has surrounded herself by people who unquestioningly support her view. Dr D is pessimistic that the mother will ever change her views or stop questioning Y. Dr D has the view that Y will continue to be exposed to ongoing questioning with respect to sexual abuse and said that the likelihood of future sexual abuse allegations is especially high.
Dr D did not think that the mother’s obsessive behaviour in this regard arose from some “organic” personality disorder. Rather, she described it as a “perfect storm” of multiple factors including the father’s personality. She supported her view saying that she had not seen evidence of disorder such as the mother being overly restrictive with the child, the fact that the child was going to school and having play dates gave her confidence that the mother’s behaviour was not a personality factor alone but was connected with the father’s personality. Dr D described the mother’s organic personality as “quite passive”.
The “perfect storm” which appears to have driven the mother’s behaviour would include the mother’s original suspicion when she thought the father had erections while playing with Y, professional validation of the view she was forming by Ms C, the finding of Judge Dunkley that it was likely that the father had sexually abused Mr F, the father’s insulting email message to the mother dated 6 May 2014, and the father taking Y away for two nights on 10 and 11 September 2014 and spending the nights with her in separate hotel accommodation.
Dr D noted that the father suggested that the mother has a factitious disorder (formerly known as Munchausen Syndrome by proxy). Dr D considered there was no evidence that the mother has induced physical health problems in the child with the motive of gaining attention or sympathy as is characteristic in such a disorder. But Dr D went on to say that the mother does present with an obsessive desire to have Y examined for evidence of sexual abuse and appears to be insulted when others do not concur with her position, and has even challenged experienced practitioners regarding their findings.
The father is in good physical health. He has a systolic heart murmur but this is monitored by a cardiologist regularly. The only prescription drug he uses is Ventolin.
The father denied the mother’s assertion that he had not been involved in Y’s care. He said that he had been present at her birth and that he has attended Y carefully during her whole life and has been highly involved in her care.
The father is self-employed. The father informed Dr D that he would be able to be available to Y as primary parent because he had flexibility with his working hours and his mother would continue to live with him and assist him if he had to work on a job. He said Y’s godmother lives nearby and would assist him.
In relation to the father’s proposed living arrangements, it is a matter of some concern that the father informed the Court and the mother during cross-examination that he was in a serious relationship with a woman. He indicated that they had no plans to cohabit. It is a concern that his mother, whom he said would assist him in care of Y, had not heard that the father was in a serious relationship until she was cross-examined about this in these proceedings.
Dr D said that the father is also naïve or blasé about the degree to which he has been aggressive and hostile in Y’s presence. She said that the father has caused enormous distress in drawing Y into conflict, with and around supervisors.
Dr D described the father during the interview as intense, emotional and forthright. She said his affect was variable, at times he appeared to become very tearful and quite emotional. But other times he expressed a great deal of frustration and annoyance and his tone was elevated and pressured. She said he appeared quite agitated at times and at other times appeared calm and reasonable. She said that his responses were logical and coherent however, and he did not display any difficulties with thought, recall or understanding.
Dr D said that the father displayed narcissist personality characteristics and was quite lacking in insight. She said that his attitude was one of “No one is going to tell me what I can do with my child”. Dr D said this lack of insight was demonstrated by the father undermining Ms C to the child, he being completely insensitive to the child having had a 12 month therapeutic relationship with Ms C and the child became very distressed, lining up all her dolls and saying that Ms C is a very bad lady.
Dr D said that there is no evidence that the father has an acute psychological impairment or psychiatric condition but she considered the father has personality features which are highly relevant to his parenting capacity. In this regard she is concerned about his narcissistic traits and propensity towards hostility and aggression when aggrieved. Dr D also expressed concern about the father’s failure to protect Y from his attitude towards the mother and his negative attitude to others who may have served as important connections to Y. She said that these aspects of the father’s personality are long-standing and occurred well before the sexual abuse allegations or the breakdown of the marriage. She observed that there are numerous records about the father behaving in this manner with others and in developing rigid, fixed and obsessive fixation on conflict with others. She expressed concern that the father would continue to expose Y to conflict with the mother and would have limited capacity to exercise restraint.
Dr D is critical of both parents for having drawn Y into their disputes and for failing to protect her from the conflict between them. She said that the parents have become so singularly obsessed with their perception of events, that it has meant that at times they have failed to protect Y in a proper manner.
Dr D said that she thought that both parents were capable of providing for Y’s physical and intellectual needs.
Another mutual failure in parental capacity was that the parents had been unable to manage Y’s obesity. Dr D said that their current position was to simply blame one another for it but she pointed out that the reality is that Y is substantially in the care of her mother. She said it was unlikely that Y’s limited time with the father was the sole cause of her being overweight. Rather, Dr D said in her view it was likely that Y’s weight might be due to her emotional distress, exposure to inter-parental conflict and her confusion regarding the toxicity between her parents.
Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
As Dr D observed, Y’s maternal grandparents are Hungarian and Y has had the opportunity to be exposed to this culture.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
This is not relevant.
Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has prioritised Y’s care and development and has arranged her daily life to accommodate Y’s needs as observed by Dr D. Dr D said that both parents appear primarily motivated to care for Y.
The mother informed Dr D she did not think it was useful for Y to spend time with the father. She described them as “predator and prey”. She thought it in Y’s best interests not to have her father in her life. She thought that for Y to have contact with the father would have the effect of re-traumatising Y and that continued contact would not be a good outcome for Y. She thought that unsupervised contact would be a “devastating” outcome for Y but said “we would learn to live with it if that was the Court’s decision”.
Dr D said that the father presents as a person who is motivated to optimise his relationship and time with Y.
Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family
In my view this is a case where a feature has been family violence. The mother alleged that the father perpetrated family violence towards her including verbal and physical violence. The mother asserted to Dr D that the father has been controlling and verbally and physically violent. The mother did not report any violence to anyone until after separation.
The mother said that the father made her pay for her own expenses and was obsessed with money. She said that he would punch doors and rattle doors. She said that frequently he called her a “fucking cunt” and would denigrate her. The father agreed that he used such language towards the mother but said that they both called each other the same thing. The father said that he and the mother both verbally abused one another.
There are numerous reports of the father being aggressive and objectionable. The father has had a dispute with his neighbour. The police became involved. The father accused the neighbours of smashing his windows and allowing their children to roam on his property. The police records indicate that the father had become quite objectionable to the police over the telephone and that he was “almost screaming” at police. They described him as having “ranted and raved” at them, and described his behaviour as “irrational”.
The father conceded that he did raise his voice. He also said “I have found that the best form of defence is attack”. The father acknowledged to Dr D that he must have been “cranky” with the neighbours and the police.
The father denied ever having been physically violent or intimidating to the mother. He conceded that he had “dented” a door when he found out about the criminal charges in 2008. He asserted to Dr D that the mother had pushed the office door through the gyprock.
Dr D questioned the child about whether her parents were friends and said that Y had answered “No”. Dr D said Y demonstrated this clearly with her body language also and said “I know the way that dad acts towards mum in a rage”. The child said “I could see a lot of violence happening but mum was too scared to say a word”. Dr D asked Y what she remembered and Y said “A lot of screaming and yelling and loud voices”. Dr D asked if this was scary and Y said “Probably…. It’s a bit hard to remember but I can still remember”. Y then said “I think dad would be very mean to me if the supervisor wasn’t there”.
The father also has a history of aggression and hostility towards not only police but also FACS officers and various supervisors. Dr D said that this suggests to her that at a minimum the father has a personality style which is aggressive, narcissistic and hostile when confronted or when dealing with conflict. I accept this.
I also accept Dr D’s opinion that the child strongly presents as a child who has been exposed to family violence, or at least to ongoing toxicity between her parents which Dr D thought could explain many of her behaviours marked by distress and confusion at having been embroiled in acrimonious disputes between her parents at which she is the centre.
In my view, it is more probable than not that both parties have engaged in family violence in the sense that they have exposed Y to their loud, and probably frightening arguments and insults. But I regard the father to have been much more violent than the mother because of what I am satisfied can be a very aggressive manner which on occasion, he fails to contain. In my view, it is more likely than not that he damaged doors as alleged.
Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter
I am not aware of any current order.
Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These parties have been involved in litigation for much of the child’s life. In these circumstances it seems to me that whatever order the Court might make, one or other of them might feel propelled to continue the long-standing litigation.
Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
The father informed Dr D that supervision of Y was “facilitating abuse of (her)”. He said that he was firmly of the view that the mother has abused Y by either directly coaching her or encouraging her to make up claims about sexual abuse. He said that he thinks Y was coached to say specific things in front of the supervisor so that there was a record of what she said. He said that therefore supervision is a form of abuse.
He said that the supervisors have stopped him from putting Y’s soccer boots on because that was regarded as being like “bathing or dressing” her which orders restrained him from doing. He said that a supervisor stopped him from assisting Y to wash her hands for similar reasons.
Both parents have expressed frustration and disappointment about the process of supervision. The father made complaints to the Ombudsman about H Contact Centre and L Group.
The father said that supervised time would not work and he would not be prepared to accept this.
Dr D said that she has read “thousands” of supervision reports over the years and that the supervision reports in this case stand out as starkly different from most. She said that in most families undergoing supervision the parents have had the insight to prioritise the child’s needs over their own. But she said in the present case the parties have been unable to do this and rather than act with patience and restraint, and focus on the child’s needs, the mother and the father have used supervision as a vehicle to continue their dispute. She said both have acted poorly at times during supervision but the father’s behaviour in particular has been apalling at times. I agree.
In any event, Dr D said that supervision has not worked and has actually exposed Y to “a whole lot of risks which have really almost eclipsed the primary concerns”. That is, Y has become the agent between parents by who they continue their toxic, destructive, acrimonious relationship and during supervised contact Y has been exposed to hostile exchanges between the father and maternal grandmother with adults with whom Y has developed relationships.
Primary Considerations
There was a strong submission on behalf of the father that the Court would not be able to make a finding based on evidence that for Y to spend time with her father would expose her to an unacceptable risk as referred to in the High Court decision in M v M (1988) 166 CLR 69. This was said to be on the basis that the evidence did not permit a finding adverse to the father concerning allegations that he has sexually abused Y. Nor, it was submitted, could such a finding be made in relation to the alleged violence or any other alleged behaviour on the part of the father. Accordingly, it was submitted there could be no basis for the Court not to make an order for Y and the father to spend time together.
In my view, this would be too narrow an approach to what the legislation requires the Court to do. It has been clear since Goode & Goode (above) that under the legislation 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 (see (2006) FLC 93-286 at 80,899).
As indicated above, the first of the primary considerations is the benefit to Y of having a meaningful relationship with both of her parents.
As I have said, Y has a close, loving relationship with each of her parents. She is very closely attached to the mother with whom she has always lived. She loves her father and he loves her. Dr D observed Y to be warm, loving, relaxed and spontaneous with her father. But Dr D described Y’s relationship with her father as “complicated” as a result of the conflict between the parents, the mother’s view of the father and some of the father’s behaviour which Dr D thought has been frightening for Y.
Dr D also said that the father has “good things” to offer Y and that for her not to be able to continue to have a relationship with him could have serious consequences in terms of Y’s emotional and psychological wellbeing.
The second of the primary considerations is the need to protect Y from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In applying these considerations the Court is to give greater weight to this consideration.
In giving proper regard to this protective consideration, in my view, it becomes necessary to weigh the various risks for Y associated with the parenting arrangements proposed by each of the parties.
Turning again to the allegations of sexual abuse of Y, Dr D, at the end of her very detailed analysis and consideration of this, said as follows:
Ultimately, I cannot make a definitive conclusion to assist the Court with respect to the sexual abuse allegations which are the heart of this matter. However, I think that there is a very low likelihood that Y has been sexually abused by the father. As mentioned previously, I think it highly likely that Y’s normal play and utterances have been contaminated and that she herself is highly confused with respect to her own memories.
Unfortunately, Y is now at current and ongoing risk of sexual harm. This is because it is almost impossible for any forensic examiner to make sense of what she says. She has been so significantly contaminated in terms of her view, behaviours and expressions, that if she does experience adverse sexual events, it will be unclear if future disclosures are true, distortions, or a mixture of both. This places her at risk of all types of sexual offending.
Having read and heard the very considerable amount of evidence about the sexual abuse allegations, and notwithstanding the view I have about the allegations by Mr F against the father, which on Dr D’s expressed opinion would “slightly elevate” the risk, I have the view that the evidence does not permit a finding one way or the other about alleged sexual abuse of Y.
As indicated above, the father proposes that Y live primarily with him and spend substantial and significant time with the mother. This arrangement would have the benefit of providing Y with ample opportunity to further develop her close relationship with her father and paternal family. And Dr D said that the father has the capacity to provide for Y’s physical and intellectual needs.
But in my view, such an arrangement would also involve significant emotional and psychological risks for Y, both immediately, in the medium term and in the longer term. To adopt Dr D’s words, as indicated above, Y would likely suffer “significant attachment distress”.
Firstly, Y has lived almost the entirety of her life with her mother and is very closely attached to her. I accept that she would be immediately sad, bewildered, would feel a substantial sense of grief and loss, wonder whether she has been the cause of her mother not living with her, angry, frustrated and possibly frightened that the father might expose her to the type of angry outbursts she has witnessed over the years, including during supervision.
As Dr D opined, in the medium term Y would be likely to experience emotional, behavioural and academic regression. In the long term Y would be likely to suffer emotional and psychological consequences.
On this scenario the mother would be likely to become overwhelmed by fear for Y’s safety because she would be living unsupervised in the care of the person whom the mother almost certainly continues to believe has perpetrated acts of sexual abuse upon the child. Dr D said that the mother would likely engage in some behaviours which would constitute ongoing risk to Y and which would not be likely to be ameliorated by therapeutic intervention.
I would have no confidence that this arrangement would spare Y the distress to which she has become so accustomed, brought about by the ongoing conflict and hostility between her parents.
And placing her with the father would almost guarantee a continuation of the allegations of sexual abuse with their accompanying burden of visits to the doctors, hospitals and other professionals, not to mention possible further invasive physical examination. It is also unlikely that the father would desist from continuing to expose Y to his very negative views of her mother. So the toxic conflict between parents which has been so harmful to Y would continue.
The alternative position proposed by the father, namely week about residence with each parent, in my view, would suffer from the same risks. In any event, Dr D said that for such an arrangement to succeed, Y would require parents who could work well with each other in a co-parenting arrangement and the parties are certainly not such parents. Dr D could not support such an arrangement because it would continue to expose Y to risk because of the conflict between the parties and the mother’s obsessional belief that the father has sexually abused Y.
On the other hand the mother’s proposal that Y live with her and spend no time with the father is certainly not free of risks for Y. The advantages would include Y continuing to enjoy the stability of her long-standing arrangement of living with her mother as primary parent and the very close, loving relationship she has with her mother.
As was the case with the father, Dr D said that the mother has the capacity to provide for Y’s physical and intellectual needs.
The mother’s proposal would also be likely to reduce the incidence of the allegations of sexual abuse and all that goes with these.
But I accept that for Y to have no contact with her father would be likely to have a deleterious impact on her psychological development as opined by Dr D. As Dr D said, Y might blame herself for having no contact with the father or might view this as the father abandoning her. She might remain confused and have distorted memories of her father and the paternal family which she might internalise. Dr D said that Y would suffer from grief and loss. And she might suffer identity problems and experience difficulty in forming long term relationships.
In addition, as indicated above, Dr D thought that Y not having contact with her father would not necessarily remove her from the prospect of the mother continuing to make allegations of sexual abuse either against the father or possibly other persons with the accompanying negative aspects of this as previously experienced.
It might have been tempting to bring into consideration a possible compromise which could achieve for Y opportunity to have a relationship with each of her parents on the basis that time spent between her and the father be supervised. As indicated above the father made it very clear however, that given all the difficulties experienced by the parties and by Y over some four years of supervised time, that he is not prepared to submit to any form of supervised time with Y. In any event, supervision has not worked.
Conclusion
Dr D’s recommendation after she considered the risks and benefits of each proposal was that the “least worst” outcome for Y would be to live with the mother and have no contact with the father. This recommendation was supported by the ICL.
Dr D is extremely concerned about Y’s mental health. She said that Y has become highly embroiled in a complex parental dispute and is distressed and confused about it. She said that Y has become overly involved in the proceedings and is at psychological risk as a consequence.
In my view, such is the toxicity between the parties that a parenting arrangement which would involve Y passing from the care of one parent to the other would carry with it ongoing opportunity for the parents to continue to indulge themselves in using her as an agent through which they can continue the conflict and hostility which has been so distressing and damaging for Y.
Accordingly, I have come to the view that in weighing the risks to Y’s psychological and emotional wellbeing if she was to live with the mother and spend unsupervised time with the father, the risks would be greater in such an arrangement than those if she was to live with the mother and not spend time with or communicate with the father.
The ICL raised with Dr D whether it would be in Y’s interests for the Court to order “familiarity” or “identification” orders, namely orders that Y see her father infrequently perhaps once per year. Dr D said that such an order would risk Y continuing to be exposed to both parents’ histories and personalities and she would inevitably be drawn to their respective “world views”. Dr D thought it would be more helpful to Y in the long term for the paternal family to receive her school reports and notices of achievements so that if Y wished to reunite with them when she is an adult, they would be able to inform her that they had continued to take interest in her and her achievements.
In all the circumstances of this complex case, in my view the parenting arrangement which will serve Y’s best interests is for her to live with the mother and for her not to spend time, or communicate, with the father for the above reasons.
In relation to parental responsibility, as indicated above, it would not be in Y’s best interests for this to be shared by the parties. Accordingly, in my view, because Y would live with the mother, it would be in Y’s best interests for the mother to have sole parental responsibility for her.
Costs
The ICL seeks an order that its costs be paid by the parties. Counsel for the ICL indicated that the costs are $14,844.50.
It was submitted on behalf of the mother in opposing any costs order that each of the parties have paid an “extraordinary amount” in the legal costs involved in their ligation. It was further submitted that the mother has only a modest income and that she has had to place her home on the market for sale in order to fund the cost of these proceedings.
Mr Gardiner, counsel for the father, also indicated that the father opposed any costs order on the basis that he too had incurred an “extraordinary amount” of costs in the proceedings.
The usual position in relation to costs is, as set out in s 117(1) of the Act, that each party to proceedings shall bear his or her own costs. That is subject to a power in s 117(2) of the Act for the Court to make a costs order if it is of the opinion that there are circumstances that justify it in doing so upon a consideration of the relevant matters referred to in s 117(2A).
What I know about the financial circumstances of the parties is that the father works in his own business and owns a property at Suburb N. I accept that the mother has a modest income from some work she undertakes as a private music teacher. And she has a house which she is in the process of selling.
Neither party is in receipt of legal aid. The father has been wholly unsuccessful in the proceedings but in my view, such an outcome was not necessarily predictable. The parties have been engaged in litigation about parenting arrangements over many years.
In my view, this is a matter where it would be just to make a costs order. The parties have a dysfunctional parenting relationship which has been damaging to the child. After many years of the child being exposed to their ongoing conflict and hostility something had to be done in the best interests of the child to endeavour to alleviate the effects of this on the child. This has resulted in complex proceedings which have required the Court to be assisted by an ICL. The hearing has consumed considerable court time.
It is the behaviour of the parents which has brought about this situation. In my view, it is just that they pay the costs of the ICL. I proposed to order that each pay one half.
I certify that the preceding two hundred and sixty-five (265) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 23 August 2019.
Associate:
Date: 23 August 2019
ANNEXURE “A”
ORDERS SOUGHT BY THE ICL AND THE MOTHER
The mother shall have sole parental responsibility for the Child, Y born in 2011.
That the Child live with the Mother.
That the Child spend no time with the Father.
That the Mother
a.sign all documents and do all things necessary to:
i. authorise the school at which the Child may from time to time attend:
(1)to furnish the Father with copies of all school reports, notices and advices concerning:
(a)the said Child; and
(b)any activity involving the said Child;
and
(2)to make available copies of any school photographs of the said Child to the Father at his expense.
b.Notify the Father immediately of:
i. any major illness suffered by the said Child;
ii. any hospitalisation of the said Child;
and
c.make available to the Father copies of any medical report or reports that may be sent to the Mother in connection with such illness or hospitalisation;
and
d.authorise:
i. any hospital in which the said Child may be admitted; and
ii. any medical practitioner under whose care the said Child may be to give such information to the Father as he may request.
The Mother shall within 14 days make necessary arrangements to obtain treatment for the Child from a clinical psychologist, excluding Ms C, in order to assist the Child to deal with any mental health issues, whereupon such treatment should commence as soon as possible thereafter and continue as recommended by the psychologist.
Pursuant to section 121 of the Family Law Act the Mother shall provide a copy of the (sic) Dr D’s expert report to the psychologist.
The Mother shall within 14 days make necessary arrangements to obtain an assessment from a psychiatrist in order to assist her to deal with any (sic) her excessive obsessional anxiety and possible paranoid beliefs as identified by the Court appointed expert, Dr D, whereupon such treatment should commence as soon as possible thereafter and continue as recommended by the psychiatrist.
Pursuant to section 121 of the Family Law Act the Mother shall provide a copy of the (sic) Dr D’s expert report to the psychiatrist.
The parties are restrained from denigrating the other party or members of their respective families in their presence or the hearing of any of the Child and will remove the Child forthwith from the presence or any third party who denigrates the other parent.
In the event that either party has a change of contact details, they shall forthwith provide the other party with details of such changes.
That the Mother arrange for the Child to meet with the ICL, and the Child’s psychologist to explain these orders and their effect to the Child.
That the Mother be restrained by injunction by (sic) discussing any aspect of the proceedings, including any Judgement or Orders, with the Child.
ANNEXURE “B”
ORDERS SOUGHT BY THE FATHER
That the Father be granted sole parental responsibility for the child of the relationship Y born in 2011.
That the subject child live with the Father.
That the Mother spend time with the subject child, such time to include:
3.1During school term:
3.1.1From 3.00pm or after school (whichever is the later) Friday to 9.00am or the commencement of school Monday (whichever is the earlier) in each alternate week. Such period of time shall recommence on the first Friday of each school term;
3.2For the first week in each of the short NSW Public School holidays commencing at 3.00pm on the last day of school term and ending at 10.00am on the midpoint day of the holidays;
3.3For the first half of the December/January NSW Public School holidays in each alternate year commencing in 2019 and each alternate year thereafter. The Mother’s time shall commence at 3.00pm on the last day of term and end at 10.00am on the midpoint day of the holidays.
3.4For the second half of the December/January NSW Public School holidays and each alternate year commencing in 2018. The Mother’s time shall commence at 10.00am on the midpoint day of the holidays and end at 10.00am on the last day of the holidays.
3.5From 4.00pm Christmas Day to 4.00pm Boxing Day in each alternate year commencing in 2018.
3.6From 4.00pm Christmas Eve to 4.00pm Christmas Day in each alternate year commencing in 2018.
3.7From 5.00pm on the Saturday preceding Mother’s Day to 5.00pm on Mother’s Day.
The Mother’s time with the subject child shall be conditional upon the Mother observing the following restraints:
4.1The Mother shall not take Y to any health professional, counsellor, psychologist or psychiatrist except in an emergency.
4.2The Mother be and is hereby restrained from discussing these proceedings with Y.
4.3The Mother is restrained from discussing with Y any belief that she may have that Y has been sexually assaulted.
4.4The Mother shall not discuss the Husband with Y.
The Father shall advise the Mother as soon as practicably possible if Y is hospitalised, becomes seriously ill or is injured. He shall advise her as to the details of where Y is being treated and the details of the treating health professional.
If the Mother’s time falls on a school day during which Y attends school then she shall collect the child from and deliver the child to the school attended by Y. In the event that the Mother’s time does not fall on a school day then the Mother shall collect the child from the residence of the Father at the beginning of her time and the Father shall collect the child from the residence of the Mother at the end of her time.
IN THE ALTERNATIVE
The Mother and Father shall be granted equal shared parental responsibility for the child of the marriage Y born in 2011.
The subject child shall live with the Father as follows:
2.1From 3.00pm Friday until 3.00pm on the following Friday in each alternate week. The Father’s time shall commence on the first Friday following the making of these Orders.
2.2From 4.00pm Christmas Eve to 4.00pm Christmas Day in each alternate year commencing in 2018.
2.3From 4.00pm Christmas Eve to 4.00pm Christmas Day in each alternate year commencing in 2019.
2.4From 5.00pm on the Saturday preceding Father’s Day to 5.00pm on Father’s Day
The child shall otherwise live with the Mother at all other times.
The Mother’s time with the subject child shall be conditional upon the Mother observing the following restraints:
4.1The Mother shall not take Y to any health professional, counsellor, psychologist or psychiatrist except in an emergency without giving the Father 7 days written notice. Such notice shall include the date of any proposed appointment and the details of the proposed health professional.
4.2The Mother be and is hereby restrained from discussing these proceedings with Y.
4.3The Mother is restrained from discussing with Y any belief that she may have that Y has been sexually assaulted.
4.4The Mother shall not discuss the Father with Y.
On days that the child attends school changeover shall take place at the child’s school. On non-school days the Father shall collect the child from the residence of the Mother at the beginning of his time with her and the Mother shall collect the child from the residence of the Father at the end of his time with her.
Y shall attend a public school agreed upon by the parties or, failing agreement, shall attend Suburb N School.
Each of the Mother and the Father shall advise the other as soon as practicable if Y is injured, hospitalised or seriously ill whilst in their care. They shall also advise the other party as to the details of the treating health professionals for Y.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Remedies
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Expert Evidence
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