MONTE & AQUILA

[2013] FamCA 728

FAMILY COURT OF AUSTRALIA

MONTE & AQUILA

[2013] FamCA 728

FAMILY LAW ACT – CHILDREN – with whom a child lives – parental responsibility – where father seeks final orders for the child to be removed from the mother’s care and to live with him – where mother seeks final orders for the child to remain in her care – where allegations made by the mother of sexual abuse of the child by the father or inappropriate sexual conduct exhibited by the father to the child – s 60CC factors – MRR v GR – finding that there has been no sexual abuse – finding that there has been domestic violence – where unable to make final orders – interim orders made for the mother to have sole parental responsibility – interim orders made for the child to live with the mother – interim orders made for the father to spend time with the child on a basis graduating from supervised time in a contact centre to unsupervised time – matter to be revisited in six months time for final orders.

Family Law Act 1975 (Cth)

MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Monte

RESPONDENT:	Ms Aquila
INDEPENDENT CHILDREN’S LAWYER:	Ms Clarissa Rayward, Solicitor

FILE NUMBER: BRC 3057 of 2012

DATE DELIVERED: 5 September 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 26 August to 29 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Frizelle of Counsel appearing for the Applicant Father

SOLICITOR FOR THE APPLICANT: Twohill Lawyers

COUNSEL FOR THE RESPONDENT: Mr Tucker of Counsel appearing for the Respondent Mother

SOLICITOR FOR THE RESPONDENT:

Ormeau Legal

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms McArdle of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Brisbane Family Law Centre

Orders

IT IS ORDERED THAT:

1. All previous Orders be discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The child, B, born … 2008 (hereafter referred to as “the child”) live with the Mother.

1. The Mother have sole parental responsibility for the child.

The Father Spending Time and Communicating with the Child

1. The Father shall spend supervised time with the child at Relationships Australia for a minimum of two (2) hours each Monday from 1.00 pm until 3.00 pm and each Friday from 1.00 pm until 3.00 pm for a period of six (6) weeks, with the Mother and Father to share any associated costs equally.

1. At the conclusion of the six (6) weeks referred to in Order (4) hereof, IT IS REQUESTED Relationships Australia provide a report to the Independent Children’s Lawyer by no later than 11 November 2013.

1. At the conclusion of the six (6) weeks referred to in Order (4) hereof, the Father shall spend unsupervised time with the child each Saturday from 9.00 am until

   
   

   4.00 pm.

1. The Father shall spend time with the child on Christmas Day 2013 from

   
   

   10.00 am until 4.00 pm.

1. The Father shall have telephone communication with the child each Monday, Wednesday and Friday, between the hours of 6.30 pm and 7.00 pm or at other times as agreed between the Mother and Father, with:

a.    the Father to initiate the telephone call on a mobile telephone number to be provided to the Father by the Mother;

b.   the Mother shall ensure the child is available to receive the telephone call;

c.           the Mother to ensure the mobile telephone is charged and in a mobile telephone reception area; and

d.   the Mother to ensure the telephone calls shall take place in private, are not interrupted and are not recorded.

Changeovers

1. When the Father is spending unsupervised time with the child, he shall collect

   the child from the McDonald’s Restaurant at Suburb C at the

   commencement of the time the child comes into his care and the Mother (or her

   nominee) shall collect the child from the McDonald’s Restaurant at Suburb

   C upon the Father returning the child into the Mother’s care.

Counselling for the Child

1. The Mother will do all things necessary to ensure that the child attends upon

   Ms D, Psychologist or such other psychologist as nominated by the

   Independent Children’s Lawyer, but such psychologist not to be Ms E,

   for the purposes of support and the Mother will:

a.   follow the reasonable direction of the psychologist as to the frequency of the child’s attendance;

b.   ensure the child continues to attend as directed by the psychologist from time to time; and

c.   be responsible for the costs associated for the child’s attendance.

1. AND IT IS REQUESTED that the psychologist provide a report to the Independent Children’s Lawyer by no later than 29 November 2013.

Assistance for the Mother

1. The Mother will do all things necessary to:

a.   attend upon a psychiatrist nominated by the Independent Children’s Lawyer for the purposes of support;

b.   follow the reasonable direction of the psychiatrist as to the frequency of her attendance; and

c.   be responsible for the costs associated with her attendance.

1. AND IT IS REQUESTED that the psychiatrist provide a report to the Independent Children’s Lawyer by no later than 29 November 2013.

Assistance for the Father

1. Within fourteen (14) days of the date of this Order, the Father enrol in a

   
   

   Triple P Parenting Program and upon completion of the program provide a certificate of completion to the Independent Children’s Lawyer.

Release of Information

1. The Independent Children’s Lawyer given leave to provide to the Mother’s treating psychiatrist and the child’s treating psychologist:

a.   the affidavit of Dr F filed 24 June 2013;

b.   the two (2) Family Reports prepared by Mr G dated 22 November 2012 and 15 August 2013; and

c.   a copy of these Orders and Reasons for Judgment dated 5 September 2013.

Updated Family Report

1. Mr G to prepare an updated Family Report AND IT IS REQUESTED that Mr G prepare and release his report by no later than 4.00 pm on 7 February 2014.

1. The Independent Children’s Lawyer given leave to provide to Mr G the reports from Relationships Australia, the child’s treating psychologist, the Mother’s treating psychiatrist and any and all updating filed material together with any updated subpoenaed documentation.

1. The parties shall attend and ensure the child attends all necessary appointments for the preparation of the updated Family Report.

Specific Issues

1. The Mother and Father will utilise a communication book each week to

   exchange information in relation to the child.

1. The Mother to keep the Father informed of the names and addresses of any medical professional and/or allied health professional, psychologist, social worker, or counsellor who may treat the child.

1. The parties to keep the other informed as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.  This Order authorises any treating medical practitioner to release the child’s medical information to each party.

2. The within Orders hereby authorise any medical professional and/or allied health professional, psychologist, social worker or counsellor who may treat the child to provide to the Father, upon his request and at his cost, copies of documents and/or information in relation to the child’s health and welfare.

1. The within Orders hereby authorise the prep/school attended by the child to provide to the Father, upon his request and at his cost, copies of prep/school reports, prep/school newsletters, applications for class photographs and the like AND FURTHER to provide information to the Father in relation to the child’s educational and social progress.

1. The within Orders hereby authorise the Director of any extra-curricular or other activity in which the child is involved, provide to the Father, upon his request and at his cost, such information as might reasonably be requested about the child together with any report, assessment or other such document provided to a parent in respect of the child.

1. The Father be authorised to attend all sporting, extra-curricular, recreational, prep/school performances or events for or involving the child to which parents are customarily permitted to attend.

1. The Mother and Father to keep each other informed in writing (including email and SMS/text message) of any change to their mobile telephone contact numbers within forty-eight (48) hours of any such change.

Child’s Passport

1. The child’s passport is to be held by the Independent Children’s Lawyer.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT:

1. The Mother, Ms Aquila born … 1971 and the Father, Mr Monte born … 1974, and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child, B

   
   

   (a female), born … 2008 from the Commonwealth of Australia.

1. AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of one (1) year.

1. Upon expiration of the period referred to in Order (28) hereof, and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List. 

IT IS FURTHER ORDERED THAT:

1. The proceedings be adjourned for mention before the Honourable Justice Bell at 10.00 am on 20 February 2014 at the Brisbane Registry of the Family Court.

1. The parties given leave to file updating affidavit material by no later than 4.00 pm on 17 February 2014.

1. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

NOTATION:

If, after the expiration of the period set out in Order (28) above any parent seeks that the child’s name remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3057 of 2012

Mr Monte

Applicant

And

Ms Aquila

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Mr Monte in relation to a child of his relationship with the respondent Ms Aquila.  The child is B, who was born in 2008.  The parties entered into a relationship – first of all, I should say the applicant father was born in Country H, came to Australia when he was very young and has remained in Australia since then.  I commend the father.  He is an immigrant of which we should be proud.  He has worked exceptionally hard, and on occasions during cohabitation has worked at three jobs.  At present he is working two jobs.

2. As I said, B, the only living child of the parties, was born in 2008.  Ms Aquila, who is the respondent mother, was born in Country I and she herself has immigrated to Australia and has generally worked.  I say the first child – the living child of their parents.  She became pregnant beforehand with an IVF child, which unfortunately had to be aborted.  She herself then, once again, underwent the difficult procedure of IVF and conceived and gave birth to the child in 2008. 

3. Unfortunately, it appears as though Mr G and Dr F said she was reported to the Department of Community Services subsequent to the birth of the child because of some “erratic behaviour”.  We really have nothing more about that, and both of those experts to which I have hereinbefore referred would have liked to have known a little bit more about it, but they do not have any idea.  

4. The parties lived and cohabited on the south coast for a considerable period.  Ms J, is a witness, if I may put it that way, in this application.  She is the adopted daughter of the respondent mother, and Ms J has given evidence, and I have heard what she has said.  It appears that basically, the mother and the father, the applicant and respondent in this case, were introduced by Ms J, on her evidence.  She was, as she said, then a friend more of the father than of the mother, but subsequently, she has obviously aligned herself with her step-mother and is most supportive of her.

5. There are allegations that the parties separate for a period of between six to nine months when the mother went to Sydney.  On one hand, it is alleged to be consensual; on another hand, it is alleged to be brought about as a result of the abusive and violent behaviour of the father towards the mother.  I say now in this case that this is a case which went over three days, that it was necessary for me to give my reasons for judgment at an early stage, at a stage that I would prefer not to have done, because I think that the parties are entitled to have a judgment nicely written. 

6. My judgments are always short, and they will continue to be short.  But I make it quite clear, in a case such as this, I think it is absolutely essential that the parties, as well as the child, become aware of my decision as early as possible so they can make certain arrangements.  And this, I believe, is for the benefit of the child.

7. In or about the month of June 2011, the father’s extended family came to live with the father and the mother.  All together eventually, there were some 12 people resident in the accommodation of the parents.  To say that this must have been very difficult for all parties is, an understatement.  I have had the opportunity of seeing two of the applicant father’s siblings.  They were Mr K [sic] and his sister Ms L.  Both, as is the father, are particularly large people. 

8. The brother suffers – has had polio when he was younger and has a disabled leg, but he is still carrying an enormous amount of weight.  The sister, Ms L, is very, very big, and I am not here to advise her as to her health, but one would think she should do something about her weight.  The reason why is this being raised – and people might think it is irrelevant – is that Ms J has, in her affidavit, alleged that during the period of time that the extended family were resident in the residence of the applicant and the respondent, that particularly Mr K and Ms L did absolutely nothing, laid in bed until about lunchtime and ate. 

9. The only reason that I am referring to this is that it appears as though the father, who is a hardworking man, would have either Mr K, who is on a disability pension, and Ms L, who is on some form of pension, would be the people who would be looking after the child when she returns from school, before the father returns home.  He indicates that he would be looking after her for a considerable amount of time, but I would have thought that there would be an amount of time in which Mr K and Ms L would be looking after the child. The child is a five year old who would be a little bit too quick for either Mr K or Ms L.

RECORDED   :   NOT TRANSCRIBED

1. Mr K, who is the father of M.  M, I believe, looms a lot larger in this case than many people think, but we will discuss him at a later stage.  That is the reason why I refer to their weight.  They are very, very big people.  They are very big.  I think unhealthily so, and some people would say that they are morbidly obese, which I think is a tragedy for them and, perhaps, a tragedy for their children. 

2. As a result, I say generally of this family, perhaps, the mother was, to a great extent, alienated, that she was pushed out to the side by the overwhelming number of father’s relations, and as a result, in or about mid-January, an unfortunate incident took place in which on one hand the mother says she was the victim, on the other hand the father says that she was the cause of a tremendous argument between all the parties.  This eventually ended up in the father being removed from the former matrimonial home and he remaining away for some time and the mother, getting a DVO, and this precluded the father from coming back to the former matrimonial home, in which he had a financial interest.  I understand the property settlement has been dealt with earlier on this year and I do not have to consider that.

3. I have referred to M, who is the son of Mr K.  M is about a year older than the child.  From about June 2011, when the extended family of the father came to reside with him, M and the child have exhibited what some people would suggest would be sexual behaviour towards each other.  In particular, I refer to the Department of Community Services Magellan report, which is dated 7 September 2012, in which the mother was concerned of the attitude of M towards the child.  I say this because the mother in her affidavit of 21 November 2012 sets out her concerns in relation to the alleged sexual abuse by the father, or inappropriate sexual conduct exhibited by the father to the child. 

4. She says at paragraph 60 of that affidavit that by March 2011, she noted certain things.  She goes on in paragraph 61 of the complaints that she had, when she was about one year old up until when she was 3 and a half years old, she began to suspect Frank’s behaviour with the child was inappropriate.  The ones that she was concerned of included constantly carrying the child, not allowing her exploring space, and it goes on until subparagraph (6).  From 15 January, note 15 January at paragraph 62, exhibiting those matters which, inter alia, include anxiety, insecurity, low self-esteem, afraid of males and other peers around her, etcetera.  That went on to subparagraph (v). 

5. It is noted that nowhere in any of the Department of Children’s Services reports, Magellan or otherwise, or the documents which have been put before me, which are very large in this matter, was there any complaint by the mother prior to about mid-January 2012, it was 27 January.  I refer once again to that Magellan report at the second page thereof under the subheading Summary of Child Protection History.  The mother had approached the Department of Children’s Services complaining about Mr K’s attitude towards his son, particularly in relation to an inflamed penis, but has not, up until January, complained about what she considered to be either inappropriate conduct or sexual abuse of the child, B by the father.

6. She did complain on 27 January 2012, and I refer to the Magellan report of the 7^th of the 9^th ..... at page 2 thereof, where she mainly refers to M.  M is referred to in that report as Child A.  And at the second page to which I have referred, she noted that the notifier – we do not know who that was – the notifier is where the police and Child Safety have been involved that the Child A as father due to concern the child has been sexually abused.  I cannot find where the police were involved prior to that date insofar as the child was concerned.  Insofar as M, there is the case.

RECORDED   :   NOT TRANSCRIBED

1. This concerns me.  Because she does complain about M acting inappropriately towards the child and, as it appears to me, perhaps by inference, the child acting in a similar way towards M.  This has caused the mother a great deal of concern, and I would have thought that perhaps such concern would have been alleviated if she had not got, with great respect to her, in contact with Ms E.  Ms E is a consultant psychologist.  She was referred by Dr N.

RECORDED   :   NOT TRANSCRIBED

1. - who was the mother’s, at that time, general practitioner in relation to the child.  His referral to Ms E was that, in fact, the father was guilty of sexual abuse and he wanted her to look into it.  She did.  She first had contact with the child and the mother on the, I think it was February. 

RECORDED   :   NOT TRANSCRIBED

1. At page 28 of the transcript of her evidence, it appears that at about line 10, she said it was in February 2012.  She saw the child on the first occasion, as she said in her evidence, that she did not interview the child to any great extent, but rather interviewed the mother, and thereafter, after about three or, at the maximum, four visits, which must have been somewhat intensive, because by about 28 February, she had come to the conclusion that the child had been sexually abused by the father because of things she was told by the mother, because of things that she was told – disclosures by the child, and her observation of the child, not only in her rooms, but as I understand, at a kindergarten or daycare centre. 

2. This evidence, of course, if accepted, would be quite damning because the mother’s concern is that in fact the child was sexually abused.  She makes it quite clear:  if the court is unable to find that the child was not sexually abused and the father had not sexually abused and that there is no unacceptable risk to the child then she would concede that the child is entitled to unsupervised contact graduated, but she is of the belief – and I refer to Dr F, a psychiatrist – a genuine belief that in fact the child has been sexually abused.  Such genuine belief, I believe, has been instilled by Ms E.  Ms E’s reports and her evidence initially were damning, and I think that regrettably the mother has been persuaded by Ms E that in fact sexual abuse took place.  Inappropriate or over-excessive, over-exuberant contact by the father with the child may be the case. 

3. These things were put to Mr G.  Mr G is a well-known consultant to this court.  He has had many years experience.  It was put my Ms McArdle, that these various things that took place between the father and M and the child were not excessive in any way at all.  He concedes.  He said particularly insofar as M and the child were concerned that it was nothing else but children exploring their own bodies, and whilst I cannot say it was normal it was in no way unnatural – and that it is up to the parents – it is up to the adults who are around to put limits upon the children exploring their own different bodies. 

4. The father perhaps has been over-affectionate to the child.  I do not know whether in fact you can criticise anybody for being over-affectionate to the child.  I always tend to say if you cannot spoil a child who can you spoil, but perhaps he was carrying on in an over-affectionate, over-exuberant manner, and this has caused the mother some concern.  I have mentioned the word genuine.  I say that Dr F is of the opinion that she is genuine in her belief.  She is not malicious.  She is endeavouring to protect her child.  Ms E says that she believes that the unfortunate conversations which on one occasion were – which were seven out of eight occasions – which conversations between the child, the father, Ms O, and Ms J were recorded indicate that quite clearly in my view the mother’s attitude in all of them was totally inappropriate.   Ms E was not aware of these recordings prior to her report.

5. Dr F once again said as far as he was concerned he thought she was attempting to protect her child.  Ms E said that as well, but the final audio which is exhibit 14, in which it is quite clear in my view the mother was attempting to alienate the child, was attempting to take the child away from the father, was, I believe, with great respect to her very, very silly.  I think she realises it now.  It does not do the child any good.  The child is under enough pressure as it is.  I would not be surprised if there are signs of anxiety which the mother refers to from – when was it directly after the brouhaha which took place with this totally dysfunctional group of people crammed into – what was it – a four or five bedroom home, 12 of them sleeping scattered throughout the place.  It has brought about as a result of that. 

6. It must have been dreadful for everybody, and she unfortunately has shown that she is under pressure and has been under pressure.  She is easing off now, as the mother says.  We will be talking about her relationship with her father.  In December 2012 the Principal Registrar, Angela Filippello, made certain interim orders in relation to contact which included supervision by Ms O.  Ms O has given evidence that there was an enormous amount of pressure on her, and I do not commend Ms J for her attitude in this case, but the child initially was somewhat – if I can use the word – standoffish with father, but once the mother left – once Ms J removed herself, the child settled down and commenced to enjoy herself tremendously with the father.  Not only does Ms O say that, Ms D – D – says that.  Mr G says that. 

7. Ms E does not say that because she did not see the child and has never seen the child with the father.  She says she does not need to, but the crucial part about Ms E’s evidence is towards the end in the cross-examination of her by Ms McArdle, and that was referred to page 39 – 38 of the transcript of her evidence in which in cross-examination of McArdle which started line 23 on page 65 she – Ms McArdle says – I will incorporate from line 30 to line 25 on page 39.  Having read them in I can just say what happened was it was put to her that could she say that sexual abuse – remember she has given a report.  She has discussed the mother and has said in her view sexual abuse took place.  It was done by the father or was inappropriate sexual misconduct, and one of the prime things that she says was the manner in which the child rode a stuffed leopard, looked embarrassed, pulled up its tail and said, “This is a poo-poo hole.”  Now, really with great respect to Ms E who I am sure was doing her very best, to rely upon that as being one of the prime matters worries me. 

8. There are other things she has pointed to, but here it was put to her at page 38 – she indicates that in fact she believed that it had taken place – had either been sexually abused and/or exposed to sexual misbehaviour.  Ms McArdle puts it to – Ms E volunteers that these things that she saw were indications, line 3.  “Yes.  It’s an indication.”  “Behaviours indicate so I have not said it is confirmed or definitely.”  “I can never say that.  Nobody could ever say that.”  For 12 months or more, for 18 months, she has been telling the mother, and the mother has genuinely believed, and I emphasise that, that in fact, the father had sexually abused, primarily, by what Ms E has told her.  That an expert in the field – a consultant psychologist – has come to that conclusion.  At this page, she goes diametrically opposite to that and says at “When I say”:

   Nobody could ever say that.

   Ms McArdle:

   Well, you have, haven’t you?---But I have said “indicates”, right.

   So that’s meaning it’s possible this has occurred, but it may not have?---  Correct.

   That is the word of Ms E.  That’s what she says.  Then I say, because I was a little bit confused:

   Sorry, I don’t understand that.  You accept it’s possible that it may have occurred.  What did she say?

   Ms McArdle said:

   It may not have, I put to her, and she agreed with me.

   I said:

   It may, but it may not have?---No, they’re indicators.  You can never, ever be definite.

   That’s as far as you can take it, these indicators?---They’re indicators. 

   They’re indicators of who has perpetrated this, possibly who has done naughty things to – are you able to point the finger at anyone?---No, absolutely not.

   Then there’s another .....  Ms McArdle:

   Ma’am, do you have a belief from your observations and the things that have been told to you, that the father has perpetrated sexual abuse in relation to the child?---I can never say that.

   To me, it appears that her evidence has, by her own admissions, been shattered.  She has, for a period, since February 2012 until September of 2013, put forward in her reports and in her original evidence that, in fact, the conduct she saw was conduct exhibiting sexual abuse and/or inappropriate sexual misconduct, and this was perpetrated upon this child by the father.  She did not come up to that in her evidence.

9. What does that mean?  It means to me that the father’s denial that any of his, perhaps, as I said, over-exuberant – which he does not concede all of them, he concedes some – he does tend to suggest that he would never be seen without his shirt, because he is a very big man, that his denials are true.  That he did not, in any way, sexually abuse the child.  That he did not, in any way, exhibit to her sexual misconduct, which could confuse her.  She has been – I am sure – pressured by the unfortunate relationship between her mother and her father, and perhaps by the incursion of 10 other people into a house which was not designed to take 10 other people. 

10. I think it is quite tragic.  I mean, I do not wish to be hypercritical of Ms E, but regrettably as a result of her oral evidence that her evidence is not worth anything.  That in fact, she has probably caused a tremendous amount of angst, that she has probably caused this case to go three days when, with the mother’s attitude as I opine now, she would have quite easily offered to the father contact graduated, because the father has had little contact up until ..... report, because the child needs to be reintroduced to her father.  She has been reintroduced to her father through D and Ms O, and other than for some early diffidence, where she used to call him Mr Monte and stand away, she laughs, she giggles, she plays football with him, she kicks the ball at him.  This is the evidence before me.

11. She will develop a good warm and loving relationship, which is necessary for any child to be reasonably brought up in this day and age.  As I have said before, the politicians – even the politicians – have woken up to the fact that the child has a right, all things being equal, to know her parents.  She has a right in this case to know her father, all things being equal.  The mother has said that.  She said, if the Court is satisfied and makes a finding that there is no sexual abuse, nor there is any risk, that she would – perhaps gradually – accept the fact that there should be unsupervised contact after a little time.  And I will be making that order, I have that indicated that to her.

12. The father, however, goes further. He says – and this is supported by Mr G – that because, in particular, of exhibit 14, that there would be no way that the mother could encourage a relationship between the child and the father – and that is one of the prime things that I have to consider under section 60CC of the Family Law Act 1975 (Cth) (“the Act”), and all of those other matters to which I have referred. I am of the view, of course, I do not have to go through each one of the section 60CC, and the other subparagraphs, which have been, once again, put upon us by politicians, which we were doing before they even thought about it, I must confess. I have to decide what is the most important thing. I have to decide whether there is a meaningful relationship, or there ought to be, between the father and the child. It is developing and will develop.

13. But what is the father’s submissions in relation to the child, in other words, being removed from the mother and placed with him.  He says, look at exhibit 14.  Look at the exhibits to the affidavit of the mother in her affidavit, 1, 2, 3 and 4.  AA1, 2, 3 and 4.  These are conversations which took place either between the mother, Ms J and the child in the car when they were going to gymnastics.  This is a complaint by the mother to Ms O where, eventually, things did tend to settle down.  There was Ms J’s attitude towards Ms O when she told the child to kick, scream and carry on, so she could be taken away from Ms O.  These are not to the advantage of the child, these are not to the advantage of the mother. 

14. Mr G has done two reports.  In his first report, he did not recommend that the child be removed from the mother.  In his second report, and particularly in his evidence, he was of the view – as a result of what he had heard – the child should be taken away from the mother, because he was of the view that there was little or no chance of the mother encouraging a relationship between the child and father.  That, in itself, is child abuse.  If in fact I am totally satisfied that that is the case.  The father has a good case, a case which has been made for him by the mother.  If I did not have those transcripts, it would be one person against the other:  the mother said she does not, the father said he does.  That evidence does tend to show to me that the mother, here, is stupid in attempting to do this, is unaware of her conduct would be such to alienate the child’s affection, or, thirdly, that she genuinely wanted to do it.  Now, she is fortunate in that Dr F, who is a very impressive witness, was of the view she was genuine.  I have mentioned that before.  She is not malicious.  She is genuine because she believes what an “expert” tells her in February, after about three visits with the child, that the child is being sexually abused and yet will not stand up to that finding 16 months later – well, more – 18 months later. 

15. She has misled the mother, I feel.  She could have come to court and said, “I don’t care.  I’ve heard all that stuff”, which she does say.  “I’ve heard all this.  I hadn’t it before.  I’ve heard all these transcripts.  I’ve heard them.  I’ve listened to them, the audio, 6 or 8 of them, which we’ve all heard”.  It would not affect her view but what was her view?  Her view was that she could not say the father had done it.  She could not say the child had been sexually abused.  That is in Court, not for the previous 18 months.  I feel sorry for the mother.  This Ms E was particularly keen on indicating that the contact centre that the child was at, which was Relationships Australia, as well as Ms O should have referred to some ethics board because of what she said was a traumatic experience that the child had at Ms O’s place. 

16. I could not find any traumatic experience.  The only traumatic experience she referred to was, in fact, that she had been taken screaming away from a door.  The child could scream.  We have heard her.  She screamed particularly on one occasion when she was having a discussion with her father.  She is a good screamer.  Mr G referred to the fact that she is a screamer.  Is that traumatic?  Ms E was of the view but I cannot accept anything that Ms E says, other than the fact she does not know, which I think.  Ms E was recalcitrant to give evidence. 

17. It may have been that, in fact, it would have been better for the mother, in one way is that Ms E eventually saw the light as a result, perhaps – I do not know – of the threats that I made and were conveyed to her quite properly by counsel for the mother that I might issue a warrant.  I could not have because no subpoena had been served but it seemed to work.  And she came along after the case was closed and I granted leave to the mother to re-open to put Ms E in, unfortunately.  Why should I not do what Mr G says?  Take the child away from the mother.  Put on the mother a moratorium not to see the child for – I think it was three months, to give the child time to settle down, to give the child to resurrect her relationship with her father.  Perhaps the only evidence that supports her is Dr F. 

18. Dr F is of the opinion, as I have said frequently, that the mother is genuine, that she is attempting to protect her child.  She is doing it the wrong way but he says give her a chance with assistance.  He says without assistance but I do not think he meant that.  He meant with some form of qualified psychiatric assistance to allow her to recognise the order that I am going to make.  She is fortunate that Dr F was of that opinion because it could be said by the legal advice of the father that I ignored evidence which was overwhelming.  

19. It is not overwhelming;  it is unfortunate for the child.  It is unfortunate for the mother.  It is unfortunate for the father.  But I am going to give her a chance.  I am not going to remove the child.  The child has been with the mother all her life.  The father has worked particularly hard.  He would not have had anywhere – I think he concedes this – he would not have anywhere as near as much time with the child as the mother had.  It would be, as Mr G conceded, traumatic for the child to be removed.  But he did say, in the short term.  I am going to give her a chance. 

20. That is why my order is not going to be final today.  My order is couched in a way that I want her and the father to have assistance by way of experienced specialists in these fields.  The father will be doing a Triple P program again.  He has got to wake up to some things.  I sincerely hope he does not have the rest of his family back in the house again, the other nine – or whatever they are.  The mother will be attending, according to my orders, upon a psychiatrist in order to assist her to come to – I make it quite clear through you, Mr Tucker, to your client that I am not convinced in any way that the father has in any way sexually abused or has exhibited sexual conduct which could upset the child. 

21. I think he has been over exuberant.  There is no evidence of this but it may the Latin temperament.  It may be.  I do not know.  There is no evidence of it.  But this is his only child.  It was a bit late in life.  I think he was 38 or thereabouts – bit late in life.  He is very proud of her.  He loves her dearly.  He just wants to be warm and loving with her.  That is how I find.  There is no sexual abuse – none.  And because the mother has quite properly – I am sure with the assistance of her legal advisor – quite properly come to the conclusion that if, in fact, there is not any sexual abuse, it is important for the child to redevelop a relationship with her father.  She has put up alternative orders which are very fair, in all the circumstances. 

22. I am not going to go as far as she has, at this stage, because the matter will be coming back before me on the 20 February 2014, after certain things – and quite a lot of things – have been done.  I have varied the order in relation to Christmas.  I do not think at this stage, Mr Tucker, through you to your client – you will see from the order – that he should have unsupervised period of one week.  At this stage until I hear a bit more about it in February.  But he will be getting some part of Christmas Day.  It is a very sad case.  It is sad for the child and it is very sad for the mother that she has received support which perhaps did not come up to scratch.  I thought that was quite tragic, that part of Ms E’s evidence.  I think I have covered everything.  I may not have covered the question of MRR v GR (2010) 240 CLR 461.

RECORDED   :   NOT TRANSCRIBED

1. Insofar as the High Court has said, I must consider the question of joint parental responsibility.  The presumption is there.  But I am satisfied, in this case, that there has been domestic violence.  I think, perhaps, preponderance perhaps on the father’s side.  I do not think the mother has been a fading lily.  She gave me the impression that she would look after her children.  She gave me the impression that she was particularly interested in M.  In fact, she was the one, who instituted police investigations for M in relation to his father, Mr K.

RECORDED   :   NOT TRANSCRIBED

1. And she was the one who went to the police or the Department of Community Services in 2011.  She did bit go about the child.  It was 2011 with M.  I must say in passing terms, Ms E was a little surprised when I put to her that, in fact, M and the child have been chipped for, shall we say, over-sexualised behaviour between the two of them.  She did tend to backpedal at that time.  I must say I am surprised that none of the experts looked into the relationship I referred to with M and the child

2. I cannot make an order for joint parental responsibility. The parties, unfortunately, at this stage, are not communicating well. There has been evidence of domestic violence. There are DVOs on both sides. I think there was one earlier this year on the part of the father. There are allegations and counter-allegations which, in my view, in courts like mine, I do not believe I should come down hard on someone – one of the parties. I do not care about witnesses – but the parties and say, “You were bad. You’re good”. Even though we are required, virtually, to do that by the provisions of section 60CC.

1. Parties in my court must leave with their dignity as much intact as possible because they are going to have ongoing future relationships with each other because of the child.  I have also then to consider if I cannot make the joint parental responsibility order, what of contact?  I am more satisfied in a case such as this that the orders I am going to make of contact is reasonable and it is substantial.  I am further quite satisfied that it is reasonably practicable for the contact to take place because of the steps that I have incorporated in my order.  The mother has got to listen to her advisors, both medical and legal, as has the father.  The child is bigger than both of you.  She is the one who I hope is the winner in this case.  The parents, in effect, are the losers because they are here.  One has not won, the other has not won.  I hope the child is the winner.  If she is, I will be pleased.  I am sure that the parties’ love for the child is enough for them to overcome some difficulties they have. 

RECORDED   :   NOT TRANSCRIBED

1. I would prefer that the independent children’s lawyer in appointing someone do not appoint Ms E.  

RECORDED   :   NOT TRANSCRIBED

1. I order accordingly.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 5 September 2013.

Associate: 

Date:  5 September 2013