Mottram & Faulkner
[2024] FedCFamC2F 183
•15 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mottram & Faulkner [2024] FedCFamC2F 183
File number: ADC 2699 of 2022 Judgment of: JUDGE BROWN Date of judgment: 15 February 2024 Catchwords: FAMILY LAW – Interim hearing – parenting arrangements for a child aged five years old – mother alleges child has made disclosures of a sexual nature – father denies allegations and asserts mother is alienating the child from him – assessment of risk – exposure to family violence – where the parties have no capacity to co-parent – where the matter is listed for trial in five weeks – assessment of risk at an interim stage – section 102NA considerations – proportionate response to risks identified – matters to be considered Legislation: Australian Constitution Ch III
Family Law Act 1975 (Cth) Pts VII, XI, Div 3, ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 68B, 68LA, 69ZW, 102NA 114,
Cases cited: B and B (1993) FLC 92-357
Deiter & Deiter [2011] FamCAFC 82
M & M (1988) FLC 91-979
Marvel & Marvel (No 2) [2010] FamCAFC 101
N & S and the Separate Representative (1996) FLC 92-655
Slater & Light [2013] FamCAFC 4
SS v AH [2010] FamCAFC 13
W & W (abuse allegations: unacceptable risk) (2005) 34 Fam LR 129
Division: Division 2 Family Law Number of paragraphs: 206 Date of hearing: 6 February 2024 Place: Adelaide Counsel for the Applicant: Mr Lindsay Solicitor for the Applicant: CG Family Law Respondent: Appeared in person Counsel for the Independent Children's Lawyer: Ms Horvat Solicitor for the Independent Children's Lawyer: Lee Kelly Legal ORDERS
ADC 2699 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MOTTRAM
Applicant
AND: MR FAULKNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
15 FEBRUARY 2024
THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
1.The Orders of 14 December 2023 and paragraphs 1, 2 & 4 of Orders made 30 August 2023 are hereby suspended.
2.The respondent father, Mr Faulkner, is to spend time with X born 2018 commencing Saturday 17 February 2024 from 9.00am to 6.00pm and each Saturday thereafter.
3.All handovers occur at the Suburb B Police Station.
THE COURT FURTHER ORDERS THAT:
4.Pursuant to s102NA(1)(c)(iv) of the Family Law Act 1975 (Cth), the parties in this matter are restrained from cross-examining the other party directly or personally other than through a legal practitioner acting on their behalf.
5.Pursuant to Section 69ZW of the Family Law Act 1975 (Cth), the Department for Child Protection do provide the Court on an urgent basis with the following documents or information from 10 August 2022 to present:
(a)copies of any notifications regarding abuse allegations arising relating to the child X born 2018;
(b)copies of any notifications regarding abuse allegations arising relating to either party during the course of their adult lives.
(c)any assessments of investigations into such abuse allegations;
(d)the outcome or findings of any such investigations; and
(e)copies of any reports received by the Department for Child Protection in the course of investigating any such notifications.
6.Pursuant to section 69ZW of the Family Law Act 1975 (Cth), the South Australian Police Department shall provide the Court on an urgent basis with the following documents or information from 10 August 2022 to present:
(a)copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties (Ms Mottram born 1997 & Mr Faulkner born 1996) or the child (X born 2018); and
(b)the outcome or findings of any such investigations, including antecedent reports for each of the said parties.
7.The Independent Children’s Lawyer is requested to arrange for the Family Report writer to give evidence at 10:00am on 21 March 2024 and confirm in writing the availability of the report writer with the other parties and the Associate to Judge Brown.
8.The trial listed to commence on 21 March 2024 for two days is confirmed.
9.All extant interim applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment arise at an interim stage of contested parenting proceedings, in which serious allegations of sexual abuse of a young child and other allegations of parental misconduct, including drug use, anti-social behaviour and violence have arisen.
The parties to the proceedings are Ms Mottram (“the mother”) and Mr Faulkner (“the father”). They are the parents of X born 2018. Accordingly, X is five years old.
It is the mother’s position that the father is likely to have sexually abused X at some indeterminate time prior to 6 November 2023. In addition, it is her case that there is something seriously amiss in the father’s household, which she suspects relates to some form of criminal activity, drug use, overlayed with serious untreated mental health issues.
Further, it is her case that during the parties’ brief and unsatisfactory relationship, she was subject to serious coercive and controlling behaviour from Mr Faulkner. In this context, she asserts that in late 2023, after the parties had been in court recently, Mr Faulkner assaulted her previous partner and the father of her infant child C (X’s half‑sibling) born 2022.
Mr E, (the partner) clearly a significant person in the mother’s life, has not provided an affidavit in respect of the assault allegedly committed upon him by Mr Faulkner. Ms Mottram has deposed that he has made a complaint to police in respect of the matter, in which it is asserted that he was assaulted by Mr Faulkner and injured by him. As yet Mr Faulkner has not formally responded to the allegation of having assaulted Mr E.
From the mother’s perspective, the assault constitutes a significant change of circumstances which warrants the court revisiting an earlier consent order regarding parenting arrangements for X. She asserts that the incident is the most recent event, in a stream of incidents, which confirm her view that Mr Faulkner is a violent, anti-social and irresponsible person, whose future interactions with X should be either confined or ceased.
It is common ground between the parties that Mr Faulkner has not directly interacted with X since 13 November of 2023, notwithstanding an order which entitles him to spend time with her on four occasions each fortnight, including overnight time.
Mr Faulkner’s position is that Ms Mottram is a highly manipulative person, who has fabricated all manner of allegations of impropriety to advance her own agenda against him, which is essentially to ensure that X is deprived of having any proper level of relationship with her father, whom she loves. It is his case that Ms Mottram wilfully disregards court orders and does, in effect, what she pleases so far as X is concerned, with no regards to him.
In my view, the positions of the parties are polarised in the extreme and I am gravely concerned at the increasingly toxic and febrile environment surrounding the proceedings. In this context, each of the parties has made frequent notification and/or complaints of anti-social behaviour to both the Department for Child Protection (DCP) and South Australia Police (SAPOL).
As a result of the protocol reached between the court and both SAPOL and DCP, each of these Departments have provided information, from their respective data bases, regarding their involvement with the family generally and individual members of it specifically. That information has been shared with the parties as it has been received incrementally by the court.
I am gravely concerned that this privilege (provision of the Departmental information) has been subject to abuse. My impression is that it has led to more notifications being made, particularly to DCP, which are duly noted by the Department concerned, with the resulting documents being subject to scrutiny and subject to whatever interpretation suits the party who has made the notification.
When the case was in court on 14 December 2023, as a consequence of Ms Mottram bringing an application, in effect, to suspend time spending between X and her father, the court did not suspend the relevant order, notwithstanding the fact that Ms Mottram had filed an affidavit on 1 December 2023 indicating that X had disclosed to her that she had suffered some form of inappropriate genital touching by her father.
On 14 December 2023, Mr Faulkner denied that he had ever behaved inappropriately towards X. He indicated that he had not been interviewed by police in respect of any complaint of sexual assault and DCP did not have an open case in respect of X, notwithstanding having received numerous notifications regarding risks to her safety.
As I recall the mother took a different view and asserted the safety of the child was under active consideration by DCP and there was, in the jargon, an open case. I went to some pains to discover whether there was such an open case and was advised that there was not. Ms Mottram conferred with her counsel and withdrew her application.
In these circumstances, the following order was made:
The consent Orders of 30 August 2023 do resume NOTING the father is next due to spend time with the child on 15 December 2023.
There is no dispute between the parties that the time did not resume, as was envisaged. 15 December 2023 was a Friday. Pursuant to the relevant order, X should have been delivered for a handover scheduled for 5.00 pm at her school. It is Mr Faulkner’s allegation that X did not attend school on that day at all in order to frustrate the intention of the order of 14 December 2023 and necessarily prior to any incident having occurred in respect of Mr E.
At 2.02 pm on 15 December 2023, Ms Gligora, the mother’s solicitor sent an email to Mr Faulkner in the following terms:
We confirm that this matter was before His Honour Judge Brown yesterday 14 December 2023. While we are mindful of the position taken by His Honour, we are instructed that the Department for Child Protection have opened a file and been investigating the matter as of the 7 December 2023.
Our client maintains her position that she will not provide the child to you as she has considerable concern about the child's welfare in your care.
It seems implicit from this correspondence that Ms Mottram had decided not to adhere to the implication of the order made on 14 December 2023. X has not been delivered to spend time with her father and as a result Mr Faulkner was not able to spend a special occasion and Christmas with X.
Whilst Ms Gligora was right to be mindful of the court’s order, in my view, it was also her client’s obligation to adhere to the order unless there were clear circumstances, germane to X’s safety which justified the child’s retention. Necessarily, in a case like the present one, that is likely to be an issue in which the resulting decision will be controversial. It was brave of Ms Gligora to make it unilaterally, without reference to the court. The court did not have a position, it made an order.
I would have thought it is incumbent on the mother (and those advising her) when the decision to retain the child had been made, to have brought the case back before the court as quickly as possible. Axiomatically, they chose not – to the rationale for the decision apparently being the open case of DCP, which was the reason provided to Mr Faulkner but not the court itself.
After 15 December 2023, Ms Mottram chose to be entirely reactive to the situation, other than it is apparent that she (or others associated with her) made a plethora of further notifications to DCP. Essentially, she left it to Mr Faulkner to bring an application in respect of X regardless of the fact that it was her decision to decline to adhere to the outcome of the proceedings of 14 December 2023. Necessarily, this course is likely to add rather than diminish the febrile atmosphere of the case.
In these circumstances, Mr Faulkner brought an application to spend time with X in accordance with the orders already made in his favour and which were explicitly not suspended by the court on 14 December 2023. This application was made 8 January 2024 and made returnable on 6 February 2024, a date which had already been allocated for a mention of the case.
In his affidavit in support, he indicated what I have attempted to summarise in the following terms:
·The mother did not attend at any places designated for handover – Kmart Suburb B – envisaged in the applicable orders for Christmas; another special occasion or otherwise;
·She had not replied to any of his calls since 14 December;
·He had not been contacted by DCP or SAPOL. He had indicated a willingness to be interviewed by DCP;
·X had missed the last five weeks of school; and
·The mother’s previous relationship with Mr E was unstable and Mr E was a violent and anti-social person.
Something must be said about the initial reason for the mention date and its relationship to the currently extremely difficult circumstances arising from this case. The parties’ competing applications have been fixed for a final hearing, scheduled to commence for two days on 21 March 2024.
Clearly each party has raised serious issues of family violence. However, at this juncture neither is subject to final family violence order or an injunction for their personal protection pursuant to either section 68B or 114 of the Family Law Act 1975 (Cth) (“the Act”). In addition, neither has been convicted of a criminal assault against the other. Mr Faulkner has elected to represent himself and further has indicated his disinclination to seek legal representation.
This situation required the court to consider the provisions of section 102NA, which appears in Part XI, Division 3 of the Act under the heading Cross-examination of parties where allegations of family violence. The relevant section reads:
(1)If, in proceedings under this Act:
(a)a party (the examining party) intends to cross‑examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c)any of the following are satisfied:
(i)either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii)a family violence order (other than an interim order) applies to both parties;
(iii)an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv)the court makes an order that the requirements of subsection (2) are to apply to the cross-examination;
then the requirements of subsection (2) apply to the cross-examination.
Subsection (2) prevents a party who satisfies any of these criteria from directly cross-examining the other party in the proceeding personally. The cross-examination must be conducted by a legal practitioner. In the applicable jargon a notice of ban is made if one or more of the criteria in subsection (1) are satisfied, only one of which is discretionary.
Necessarily, the current matter is one replete with allegations of family violence. As such it was clearly open to the court to make an order pursuant to section 102NA pursuant to the discretion created by 102NA(c)(iv). In effect, what subsection 2 requires is that where section 102NA(1) applies, the examining party must not cross-examine the witness party personally and such cross-examination must be conducted by a legal practitioner.
A note to the section reads as follows:
This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
Accordingly, if a banning notice is made the ban applies to each party.
In order to ameliorate the possibly harsh consequence of the application of the section and prevent any possible miscarriages of justice, which may conceivably arise if evidence is not properly tested, the Commonwealth Government has instigated a scheme known as the Commonwealth Family Violence and Cross-Examination of Parties Scheme, which funds legal representation of any party subject to a ban on cross-examination.
The scheme is available to both the person raising the allegation and the person resisting it. However, for obvious reasons, a party who is subject to a ban may elect to fund proceedings privately or via a grant of legal aid.
Mr Faulkner informed me that if an order was made banning him from cross-examining Ms Mottram, he would not seek to utilise the scheme as it is his view that it is his fundamental right to cross-examine a person who has alleged that he has committed a crime. In addition, it would appear to be his position that he is entitled to represent himself, if he wishes to do so, in a suit brought by himself. This is undoubtedly the case so far as the second contention is concerned.
Accordingly, the situation presented a dilemma. At first blush, the factual matrix presented by the case was clearly one envisaged by the legislature as falling within the purview of section 102NA and as such it was likely that the representation of Mr Faulkner would assist in managing a potentially difficult piece of litigation and ensuring that relevant issues were fairly and appropriately put to each of the parties in cross-examination at professional arm’s length.
When I attempted to explain these concepts to Mr Faulkner, he adamantly refused to change his initial stance. I urged him to think about the matter further and, to his credit, he indicated he would. This was the rationale for the matter being listed for mention on 6 February 2024, so he could consider his position.
In a Family Report, prepared to assist the court (to which I will return in greater detail at a later stage of these reasons) Mr Faulkner was described as having an evident bitterness against Ms Mottram and having a perception that he faces an uphill battle to maintain his relationship with X. He presents as mistrustful of the court and those in authority, in the sense that he perceives the system was weighted against him. His manner in court is negative and lacking in the conventional attitudes of respect usually given to the court.
Essentially, Mr Faulkner is not a person who presents as being easy to communicate with or engage with in a positive way, in the stressful environment of the court. His demeanour is defensive and negative.
As a consequence, these proceedings have all the worst aspects of adversarial litigation, particularly a lack of any cooperation between the parties concerned or any facility to engage in any form of discussion. Rather, it appears to be Mr Faulkner’s position that the proceedings are characterised by ambush and prejudice.
As a result of the information sharing protocol, I have been provided with some information regarding the parties in the proceedings, as well as X. This indicates that, as at 15 December 2023, police are investigating an assault, which is described as new/ongoing investigation, in the context of the family concerned in this case. I have no further information in respect of the evidence.
In the submission of Mr Lindsay, the newly appointed counsel for the mother, the fact that such a complaint has been made is proof of the fact that something must have occurred between Mr Faulkner and Mr E, as Ms Mottram has alleged. She was not present when the incident occurred and can only have heard about it from others. The police note does not provide any names or details.
As will be detailed in due course, Mr Faulkner himself has declined to the opportunity to provide further affidavit evidence in respect of this incident and, to adopt a neutral description of his attitude towards the allegation against him, was non-committal in response to an inquiry I made of him as to whether he knew anything of the alleged assault on Mr E, and whether he was involved in anything untoward. He declined an opportunity to seek legal advice in respect of the issue.
Ms Mottram responded to Mr Faulkner’s application at a late stage, filing her material electronically after hours on 5 February 2024. No doubt this added to Mr Faulkner’s perception that the system is weighted against him. He is forced to bring an application to compel adherence to orders made in his favour, which has not been followed because of allegation of malfeasance made against him, yet the details of that malfeasance are provided at the extreme last minute, so he cannot respond formally.
In this situation, he either applies for an adjournment and the prospect of him resuming time with X is further delayed or he orally refutes the evidence mustered against him and goes ahead with his application as properly filed, as best he can, in response to the notice provided by him by Ms Gligora, on 15 December 2023 that her client whilst being mindful of the court’s order will not follow it.
Mr Lindsay submitted to the court that he would not oppose the proceedings being adjourned so that Mr Faulkner could formally respond, an opportunity Mr Faulkner declined. I can understand why he would do so as it likely to be his perception that Ms Mottram is inclined to utilise the delay to frustrate his desire to engage with X and the offer of adjournment tokenistic in nature.
Again, given the centrality, apparently in the mother’s mind and those advising her, that there was an open case with DCP, the court sought information from the Department pursuant to the information sharing protocol. This resulted in the following letter being provided on 5 February 2024:
The department do not have an open case in relation to the child, [X].
Since the department provided information to the court on 14 December 2023, the department have received an excessive amount of child protection notifications in relation to [X]. This reported information pertains to allegations that [X] may have been sexually abused by her father, this has been previously reported to the department.
In 2024 the department received further child protection information in relation to [X] on over 25 occasions. The reported information concerns relating to [X] disclosing her father has touched her on her private parts, [X] is distressed with having contact with her father again. Reported concerns [X] alleged that her father and his partner [Ms D] "hit her". Reported concerns that the father allegedly "drugged" [X] on one occasion.
The most recent child protection concerns were received on 25 January 2024. The reported information pertained to the mother employing a private investigator in relation to the concerns for [X].
The information reported to the department was assessed as not requiring departmental intervention.
Departmental records to (sic) not reflect there is a current SAPOL investigation at this time.[1]
[1] DCP Report dated 5 February 2024.
Clearly although the Department did not have an open case in respect of the family, the Department has continued to tabulate notifications received by it in respect of the family. No doubt, it has a statutory duty to do so. In this context, there is likely to be a terminological difference between maintaining such records, in an electronic filing system and having an open case in the sense of actively investigating such notifications through a process of interview or otherwise actively gathering evidence. The distinction may, depending on the circumstances, be a difficult one to convey.
The court’s responsibility, at the interim hearing stage, at which the evidence available is likely to be limited and hastily gathered, invariably against a background of crisis in the family concerned, heightened by the emotions and suspicions of the parties concerned, is to put in place the regime of orders, which it considers will best protect the child concerned from coming to harm, both in emotional and physical terms, commensurate with the degree of risk arising to that child from its (the court’s) assessment of such risk.
The evidence available must be assessed in the context of a truncated hearing, which does not allow for its testing through any process of cross-examination. As such, it is not possible for the court to make findings of fact about contested issues. In addition, there may be a deficit of evidence. In cases such as the present, a party may have sought to engage the relevant department charged with responsibility for child protection and be aggrieved that such department has not elected to investigate.
I have no authority to direct any government department to conduct an investigation relevant to the safety of any child. Child Protection Departments (and indeed SAPOL) are instruments of state governments, and my authority stems from Chapter III of the Australian Constitution and the Commonwealth Government, which authorise me to adjudicate what are known as matrimonial causes (although I appreciate, of course, the parties were not married).
However, the factual matrix pertaining to a child, where there is a dispute as to parenting issues, as in this case, often straddle both matrimonial causes and child protection issues. It is in this context that the information sharing protocol has been developed. It is a useful and positive initiative and is aimed at avoiding duplication of court proceedings and the sharing of information between potential decision-makers charged with making decisions about children in the two different but complementary spheres.
However, the fact remains that if the Department considers a child is in need of care, it must pursue an application in a court of state jurisdiction and if only the parties concerned are in dispute, such controversy must be resolved in a federal court of jurisdiction. It being the case that a care and protection application will remove a federal court of its jurisdiction.
In this sense although information provided by a child protection department is invariably useful and gratefully received by this court, it is not determinative of any outcome in the case concerned. Rather the court must determine issues relating to the safety of a child pursuant to the provisions of the Family Law Act 1975 (Cth).
However, the court cannot avoid its responsibility to assess risk for any child concerned in the proceedings before it, on the basis of any perceived deficiency in the evidence available or a lack of involvement of child protection authorities. Essentially, child safety issues cannot be deferred until such time as more or better evidence becomes available or indeed a child protection agency or the police elect to do something.
In M & M,[2] a case which is factually congruent with the current matter, because it deals with an allegation of sexual abuse, the High Court formulated a test, which has since been referred to as the unacceptable risk test as a means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent. Essentially the court should not grant time to a parent with a child, if the situation envisaged would expose the child concerned to an unacceptable risk of suffering some form of harm or abuse.
[2] See M & M (1988) FLC 91-979 at page 77,081.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.[3]
This is the standard which I must apply to the allegation that X has been subject to sexual abuse as well as the issue of the level of risk Mr Faulkner poses because he is alleged to have recently assaulted Mr E.
[3] Slater & Light [2013] FamCAFC 4 at [37].
The task of assessing risk, in cases involving allegations of sexual abuse of a young child, who is developmentally and cognitively immature, is inherently difficult as it is very often the case that such a child is unable to provide a clear narrative of what has happened to him or her and is only able, for obvious reasons, to provide any details in childish language and without an adult’s comprehension of sexual issues. Necessarily, this can lead to misunderstandings.
As a consequence, given the only individuals who were present when the alleged abuse occurred, are the alleged abuser and the child concerned, it is likely to be impossible for the court to determine what did or did not happen to the child, in the absence of independent objective evidence of sexual abuse.
In many cases, allegations of sexual abuse arise in cases where parties do not trust one another or have no facility for communication to discuss such disclosures and ascertain what has precipitated them from the perspective of the child concerned. Clearly, this is the situation in the current matter. Ms Mottram did not contact Mr Faulkner to see if there was some explanation for what X is said to have disclosed to her.
For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or indeed manipulated. Regrettably, it is also not unknown for allegations of sexual abuse to be made for tactical or mischievous reasons. It may be difficult to differentiate between these various scenarios and in some cases there may be a conflation of them.
As Fogarty J said in N & S and the Separate Representative:
…courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.[4]
[4] See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (2005) 34 Fam LR 129 at [95].
In these circumstances, the court must approach issues of sexual abuse of a child with great caution, being aware that if true, it represents the most serious and severe form of child exploitation, which, for obvious reasons, has devastating consequences for a child’s development, in both the short and long term.
On the other hand, the court must also bear in mind that it may be equally emotionally devastating for a child to be deprived of a loving and worthwhile relationship, with a much loved parent, on the basis of a risk which is nebulous or illusive in nature, but may remain very real and concrete in the mind of the other parent concerned, perhaps against all objective evidence, including in the context of the child protection authorities not being concerned about the matter.
The court is required to consider all these species of risk, in the context of the stage of proceedings at which they arise, and put in place a regime proportionate to the degree of risk identified, bearing in mind the legal principles applicable.
THE LEGAL CONTEXT
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 (Cth).
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
Axiomatically, the two considerations provide the poles around which this case turns. The mother relying on protective concerns; the father on the benefits likely to derive from X maintaining her hitherto meaningful relationship with him. Accordingly, it is a case concerned with the assessment of risk – the risk of exposing the child to an abusive person on the basis of uncertain evidence; the risk of dislocating the child’s emotional life, on the same evidence. Risk cuts both ways.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations to give greater weight to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In my view, this is axiomatically not a case in which the presumption of equal shared parental responsibility [section 61DA] has any application. In this case it is not appropriate for it to be applied at the interim stage. Accordingly, the court is not mandated to consider equal time.
BACKGROUND
Ms Mottram was born in 1997. She lives in Suburb F. She is a student but has been previously engaged in the workforce, when not on parenting leave. Mr Faulkner was born in 1996. He lives in Suburb G and is employed as a tradesperson.
The parties initially met when students at high school and commenced a relationship in 2017. Mr Faulkner lived with the mother and her family from time to time, but the relationship was an intermittent one, which broke down finally in mid-2020.
As with Ms Mottram, Mr Faulkner has re-partnered. His partner is Ms D. She is the mother of H born 2019. H lives with Ms D and Mr Faulkner.
H’s father is Mr J. He and Ms D separated in 2021. Mr J filed an affidavit late in the afternoon prior to the hearing, which is supportive of Ms Mottram and critical of Mr Faulkner and Ms D. Ms Mottram’s mother, Ms K has also filed an affidavit in the proceedings. She has deposed in respect of disclosures of abuse received by her from X on 29 November 2023.
Ms Mottram and Mr Faulkner are not the only parties to the proceedings. On 17 May 2023, a Judicial Registrar of the court ordered that X be represented independently of her parents in these proceedings. Her representative is Ms Kelly, an Adelaide family lawyer. Ms Kelly has briefed a barrister, Ms Horvat, to appear on her behalf in these proceedings.
Ms Kelly is to be regarded as a party of equal importance to the parents concerned. Pursuant to the provisions of section 68LA of the Act, she and Ms Horvat are required to assess all the evidence available to the court and then make submissions as to what they regard as the best mechanism to serve X’s best interests.
At this stage, Ms Kelly has had insufficient time to issue subpoenae or other statutory notices issues pursuant to section 69ZW of the Act to obtain documents relating to the various allegations arising in this case. Accordingly, it is Ms Horvat’s submission that she and Ms Kelly are somewhat hamstrung, at present, in respect of their obligations pursuant to section 68LA of the Act.
For this reason, Ms Horvat advocates a cautious approach be adopted in the case. She proposes that the father only spend time with X for a few hours on a weekly basis at an unspecified play café in the absence of her mother. With the greatest respect, this proposal does not seem to have been closely considered. It was not raised on 14 December 2023 hearing and although it is true there was no formal adjudication of the matter on that date, Ms Horvat did not speak against the order which was ultimately made, which, in my view obviously envisaged the father’s time with X resuming. I understand that Ms Kelly was not in the country at the time of the hearing.
The mother’s position is that the time spending orders should be suspended. In the alternative, she proposed that there be professionally supervised time at a children’s contact centre (CCC). However, it is acknowledged that due to delays relating to demand there are significant delays in parents accessing such services at all the CCC’s in the Adelaide area. As such, it is unlikely that Mr Faulkner would be able to spend time with X prior to the time scheduled for the final hearing.
This delay seems to provide the rationale for the play café proposal. I do not know whether the issue of time spending at a play café was raised directly with Mr Faulkner before Ms Horvat voiced it in court or whether there was any discussion about a lay supervisor.
In his submissions, Mr Lindsay indicated that his client wished to defer the final hearing so that the Family Report could be updated. It being his contention that there had been a significant change in circumstances since its preparation in April 2023.
These changes relating, as I understand it, to the sexual abuse allegation; the assault said to involve Mr E; and what was asserted to be Mr Faulkner’s unsatisfactory explanation as to why he withdrew from spending time with X on 29 March 2023 for a period of approximately two months.
It is Ms Mottram’s position that this significant hiatus is evidence of the fact the Mr Faulkner is or has been embroiled in some serious criminal enterprise or was and continues to suffer from some serious and undisclosed psychiatric illness.
Mr Lindsay informed me that his client had sought information from various of Mr Faulkner’s employers during the relevant period and it was anticipated that these individuals would give evidence at the final hearing, which was likely to mean that the hearing would take up to five days to be concluded, which again was a factor justifying the vacation of the hearing.
For what it’s worth, he indicated his client no-longer would press for any declaration to be made under section 102NA(1). In my view I am still mandated to consider the provision. Clearly Ms Mottram does not resile from any of her assertions that she has been subject to family violence from Mr Faulkner.
In this context, I accept that the legislative intent of the provision, amongst other things, is to protect individuals such as Ms Mottram from being oppressively cross-examined by those who have done them wrong to prevent potential re-traumatisation. As such, it must be a relevant consideration if such a person does not personally seek such a form of legislative protection.
The applicable rules of court require Ms Mottram’s solicitor to provide a notice of the costs incurred by her and those anticipated to be incurred one day prior to each court event. No such notice was provided at the hearing as required and I directed that it be produced to my chambers. This indicated that Ms Mottram’s costs up to 19 June 2023 had been $42,706.00 but thereafter her costs and those to be incurred in preparation for trial and at trial would be met by Legal Aid.
As best I can understand his position, Mr Faulkner does not support an adjournment of the trial particularly if it means that he will either not spend time with X or will only spend time with her at a CCC or at a play café for brief periods of time. It is his perception that the system is being gamed by those advising Ms Mottram and Ms Mottram herself to circumvent his application. In this context, he presents to the court as frustrated and truculent. I can understand why he feels so but for what it is worth point out, as respectfully as I can, this attitude is not likely to be helpful to him, particularly whilst he elects to represent himself.
As indicted, the court does have some information, which as previously indicated has BEEN provided by SAPOL, along with some letters from the Department for Child Protection regarding the information provided to each such department about both X and her parents. I will attempt as best I can to summarise this information.
CHRONOLOGY OF PROCEEDINGS
Ms Mottram commenced these proceedings on 22 June 2022. On both an interim and final basis, she sought orders that X live with her, and she have sole parental responsibility for the child. Initially, she proposed that Mr Faulkner should spend time with X from 5.00pm on Friday until 5.00pm the following Sunday in alternate weeks and in the intervening week from 3.00pm until 7.00pm on a designated weekday.
In the Notice of Child Abuse, Family Violence or Risk document, required to be filed with her application, she alleged that the father smoked marijuana regularly and drank to excess. She also alleged that he had subjected both her and X to family violence.
As indicated above, the parties initially met when students at high school and commenced a relationship in 2017. Mr Faulkner lived with the mother and her family from time to time, but the relationship was an intermittent one, which broke down finally in mid-2020.
In her initial affidavit, Ms Mottram agrees that Mr Faulkner regularly spent time with X, after the parties separated, but she asserts that he was inconsistent and unreliable in respect of his commitment to the child. She also asserts that she was subject to regular verbal abuse from Mr Faulkner.
Mr Faulkner responded to this application on 9 August 2022. At the time, he was represented by solicitors. He now appears on his own behalf and, as indicated above, has advised the court that he is disinclined to seek legal representation in future and if subject to a ban on cross‑examining, he will feel aggrieved but will not seek funding pursuant to the relevant scheme. Ms Mottram has been represented by the same firm of solicitors throughout the proceedings to date.
In his Response, Mr Faulkner sought that the parties have joint parental responsibility for X and as a consequence the child live with each of her parents on a week about basis.
In his Notice of Child Abuse, Family Violence or Risk document, he indicated that Ms Mottram had exposed X to family violence by attempting to assault him, when X was in his care. He also alleged that the maternal grandfather and grandmother had been controlling of him.
In his affidavit, he asserted that the relationship between him and Ms Mottram had been a volatile and toxic one, which was categorised by Ms Mottram denigrating him. He denied having ever assaulted the mother or that he had ever been disinterested in pursuing a relationship with X. To the contrary, he asserted that following the parties’ separation, Ms Mottram had dictated the times I could spend with [X] and I would take any time that was offered to me.[5]
[5] Affidavit of the father filed 9 August 2022 at [39].
Notwithstanding this difficult and polarised background, the parties agreed to attend upon a process of family dispute resolution. In these circumstances, when the case came before the court, for the first time, ostensibly at least, they were able to agree upon on an interim regime for X’s care, before a Judicial Registrar, in the following terms:
·X would live with the mother;
·The father would spend time with the child from 12.00noon on alternate Wednesdays until 7.30am the following Thursday; and
·On each Friday alternating from overnight on Saturday until the commencement of child care the following Monday and from 9.00am until 1.00pm.
At the time, X was 3 years of age and in my view, it was implicit from the regime agreed upon that each parent agreed that it was appropriate for her that X should have a significant level of relationship with each of her parents and this was in her best interests.
The case returned to court on 7 November 2022, again before a Judicial Registrar. The orders of August were continued with some variations and arrangements made for the Christmas period. At this stage, it was ordered that a Family Report be prepared. On this occasion, the parties indicated their view to the court that it was likely the matter would proceed to final hearing.
In the lead up to the preparation of the Family Report, the mother filed an affidavit in which she confirmed that Mr Faulkner had been spending time with X but was critical of other aspects of his conduct. In particular, she asserted that he had been unable to maintain regular employment and was difficult to communicate with about such issues as the appropriate school for X; whether she could go on a family holiday; facilitating her attendance at sport; whether she should maintain a specific diet; and be vaccinated.
THE FAMILY REPORT
The Family Report was released to the parties on or before 20 April 2022. It was prepared by a Regulation 7 Family Consultant, Ms L. The contents of Ms L’s report, and the methodology adopted by her in its compilation, has not been subject to any outside scrutiny.
From interview with each of the parents concerned, it was Ms L’s impression that neither trusted the other and communication between them was extremely limited and what did occur was hostile in nature. She wrote as follows:
It was evident that [Ms Mottram] has lost trust in [Mr Faulkner] whereby she finds it difficult to communicate with him. [Ms Mottram] said that she values routine and consistency for [X]. With the history of alleged time and date changes for the care of [X] by [Mr Faulkner], the mother likely does not feel that the father sees consistency as a similar priority…
It was evident that [Mr Faulkner] has a bitterness toward [Ms Mottram] for proceeding to Court. At several points, the respondent stated that he does not feel the legal process and ongoing dispute is in [X’s] best interest.
[Mr Faulkner] described feelings of manipulation, helplessness and an “uphill battle” to continue to care for [X]. It was evident that [Mr Faulkner] feels communication with [Ms Mottram] is not affective as he has concerns that what he says will be used against him by [Ms Mottram’s] lawyers.[6]
[6] See Family Report dated 20 April 2022 at [31] and [48]-[49].
Ms Mottram was critical of Mr Faulkner consistent with the matters raised in her extensive affidavit material hitherto filed, namely that Mr Faulkner was inconsistent with care arrangements for X, and she was concerned that he had not attended to a medical emergency appropriately, in late-2021, when X had injured herself.
For his part, Mr Faulkner alleged that X had told him that the mother’s current partner had hit her. Mr Faulkner was also concerned that the partner drove erratically and had an addiction to alcohol and drugs. As a consequence, Mr Faulkner alleged that he had concerns, for X, when she was in the care of the mother’s partner.
Ms L has a significant advantage over me in these proceedings in the sense that she has actually met X and seen her interact with each of her parents directly.
Ms Mottram was described as being affectionate towards to X and responsive to demands of her care, as well as those of C, who was with her during the report process. X stayed close to her mother during the observed interaction and the two sat on the floor and played together.
When X was brought into see Mr Faulkner, she was reported to give him an immediate tight hug and throughout the process sought comfort from him and nestled into [Mr Faulkner’s] chest.
Ms L described her observations of X and Mr Faulkner as follows:
[Mr Faulkner] had positive interactions with [X] whereby he encouraged her to seek toys to play with as she desired. [X] chose a book with confidence and [Mr Faulkner] read the story to [X]. [Mr Faulkner] was able to stop and start the book as [X] was engaged with various toys.
[Mr Faulkner] and [X] were observed to be sitting on the floor together during the entire observation.
[X] and [Mr Faulkner] were observed to share laughter. At one point, [X] hit [Mr Faulkner] with a hammer. [Mr Faulkner] provided [X] education about not hitting others, [X] appeared to understand and stopped easily.
[Mr Faulkner] was complimentary of [X] whereby he remarked on her outfit and told [X] she was clever. The father engaged with the child about her home life with her mother in a positive way.
[Mr Faulkner] was not aware that [X] would be present at the interviews and was visibly excited when he learnt he would see her. The father provided the child learning opportunities and engaged about her mother’s family and home in a positive way.[7]
[7] See Family Report dated 20 April 2022 at [79]-[83].
Given the obvious communication deficits between the parties, Ms L did not favour a shared care regime, until the parenting relationship between the parties had improved and X had become more mature. She did however consider, as a consequence of her observations, that Mr Faulkner had a caring and child focussed relationship with [X].
Ms L was assiduous in avoiding assuming any fact-finding role in the proceedings, which remains the prerogative of the court. As such, she was unable to provide an opinion as to whether Mr Faulkner had engaged in coercive controlling behaviour, both before and after the parties separated. She did however note that such conduct was likely to have a detrimental impact upon a child’s development, in both psychological and behavioural terms.
The impression I have, from reading Ms L’s report, is that she was somewhat pessimistic about the implications for X, given the obvious antipathy between Mr Faulkner and Ms Mottram. In this context, she reported as follows:
[Mr Faulkner] and [Ms Mottram] were observed to cross paths a couple of times throughout the interview. Except for a brief hello, neither party enquired nor made small talk with the other. There appeared to be no warmth or respect between the parties whereby it is very likely [X] would notice this and perhaps feel split in her loyalty between her parents.
It is unclear if either parent understands how they have contributed to the parenting dispute given they both asserted throughout the interview that their actions were in [X’s] interests. It cannot be determined by the Family Consultant as to how open either parents are to hearing [X’s] views or expert advice about their child.[8]
[8] See Family Report dated 20 April 2022 at [98]-[99].
At the time of the report, it was Ms Mottram’s position that she wished to reduce Mr Faulkner’s time, with X, from four nights per fortnight to two nights per fortnight; whilst for his part, Mr Faulkner wanted to extend his time, with the child, gradually over time. From Ms L’s perspective, the viability of each such outcome depended on the existence of coercive and controlling family violence, which was beyond the remit of Ms L to determine.
In the context of the court possibly reducing X’s time, with her father, Ms L considered that this might be possibly emotionally traumatic for her, not only because her relationship with her father was assessed to be positive, in its nature, but also because it was apparent that she also enjoyed spending time with H.
In all these circumstances, Ms L presented the court with three scenarios, in respect of her recommendations in the case. These can be summarised as follows:
·If it is determined that Mr Faulkner can provide a safe environment for X, she continues to spend substantial time with him, as per the current regime, with an increase of holiday time, when she commenced school;
·If the court finds substance to Mr Faulkner’s allegations concerning the mother’s partner, Mr E be subject to drug testing and more details obtained regarding his criminal history so that appropriate orders could be made for X’s protection;
·If issues to do with the father committing family violence, the mother be conferred with sole parental responsibility for the child and consideration be given to reducing the time. However, caution needed to be taken before any such reduction, given Ms L’s assessment of a positive relationship between father and child.
In this context, it is interesting to note that Ms L thought that it would be useful for the court to obtain independent expert assessment as to whether Mr E consumed illicit drugs not Mr Faulkner. Clearly, given the current application regarding a hair follicle test the mother has her suspicions that the father has issues in this regard but she is not able to provide evidence of any such consumption other than she asserts Mr Faulkner behaves erratically.
EVENTS AFTER THE RELEASE OF THE FAMILY REPORT
Mr Faulkner began to represent himself in February 2023. This coincided with the appointment of Ms Kelly as the Independent Children’s Lawyer. I have not been advised why the instructions to his lawyer were terminated.
On 8 June 2023, the father filed an affidavit, but not an application, in which he indicated that he voluntarily ceased to spend time, with X, from 26 March 2023 onwards, as a consequence of he and his family being victims of crime. Ms Mottram is critical that details of this crime were not provided.
As best I can ascertain, this matter related to a case before the Fair Work Commission, which involved Mr Faulkner and one of his former employers and as at early-June, from Mr Faulkner’s perspective, had been resolved. As such, he sought to resume spending time with X on 9 June 2023 but this had been opposed by the mother and apparently there had been an unpleasant incident between the parties at X’s sport.
It is the submission of Mr Lindsay, counsel for Ms Mottram in the current proceedings, that this incident remains highly concerning to his client and has never been satisfactorily explained to her or the court by Mr Faulkner. From my perspective, it is apparent that the already poor relationship between the parties became even more compromised after it.
In these circumstances, Ms Mottram filed an application on 16 June 2023 in which she sought to reduce the father’s time with X to three occasions per fortnight each consisting of one overnight period but on non-consecutive days. She also sought to be able to enrol X at M School, which I understand is close to her home.
Mr Faulkner’s preference was for a private school and a return to the previous regime of four nights per fortnight. In practical terms the difference was one night but from each party’s perspective, as I recall there was a gulf as how either such regime was to be implemented and the practical implications regarding which school was selected. He felt aggrieved that, from his perspective, he had not been properly consulted about the school and had, in effect, been presented with a fait accompli so far as M School was concerned.
It was in this context, that the relevant Judicial Registrar received information from DCP regarding departmental involvement with the family as at 23 May 2023. This record indicated that the Department did not then have an open case for X but had received six previous notifications in respect of her, which had not been investigated.
These notifications concerned both the father and mother and were consistent with the affidavit material filed, namely Mr Faulkner misused alcohol and illicit substances, had failed to return X on two occasions as scheduled, and had not properly attended to her injury in 2021. As far as I can recall I have not been provided with any expert evidence in respect of this injury.
In addition, a notification was made that Mr E had a criminal history, which included assault convictions and had yelled at Ms Mottram, in X’s presence. More significantly, the following notifications were received:
[In early] 2023, the department received allegations that [X] disclosed on [the previous day], step father [Mr E] hit her on the hand/arm when she was naughty. It was alleged that the step father [Mr E] often made comments to her such as "your daddy does not love you" and "you don't need your (paternal) grandmother as you have my grandmother now".
[In early] 2023, the department received allegations that associates of the father [Mr Faulkner] went to the father [Mr Faulkner’s] residence and threatened "you have till the morning to drop the case and if you don't I will come back tomorrow night to beat the shit out of you and your kids and your missus, I don't give a fuck, I will make your kids watch". It was alleged that [Ms D] was extremely fearful that the men would return and assault her, [Mr Faulkner] and the children.[9]
[9] See DCP co-located report dated 23 May 2023.
In her affidavit of 16 June 2023, Ms Mottram indicated that she and Mr E had separated on amicable terms earlier in the year after having earlier separated after (and then presumably reconciling) after what she opaquely described as an isolated incident which had occurred in late 2022. She asserted that she and Mr E were on amicable terms and were co-parenting C. She denied that he had ever physically assaulted or disciplined X.
This was the context of an interim hearing being scheduled for 28 July 2023. By this stage, X had been enrolled at M School. As I recall, I was not persuaded to change the school given the enrolment be made during the period Mr Faulkner had apparently withdrawn from her life, but I did reinstate time so that X spent time with her father on a fortnightly basis as follows:
·In week one on two occasions from 12.00 pm on Wednesday until 8.30 am on the following Thursday and from 5.00 pm on Friday until 8.30 am the following Monday;
·In week two on Friday from 3.00 pm until 7.00 pm.
Given the fact that the parties appeared to be at odds in respect of practical matters, they were also referred to a process of FDR, which was an intervention advocated by the Independent Children’s Lawyer. The case returned to court on 30 August 2023 after the FDR failed to help them resolve their dispute. It was on this occasion that the case was fixed for final hearing on 21 and 22 March 2024, which was then the earliest dates available.
Significantly the parties were able to agree on the regime of parenting arrangements leading up to the trial, which essentially reflected the earlier consent orders and rendered the enrolment at M School a fait accompli. The relevant orders were as follows:
BY CONSENT IT IS ORDERED:
1.That paragraph 2c of the Order of 28 July 2023 be varied such that the child spend time with the father in week 2 of 2, from the conclusion of kindergarten (or 3pm if a non-kindergarten day) until 6.30pm on Friday, commencing 8 September 2023.
2.That the time referred to in paragraph 2a of the Order of 28 July 2023 be extended to conclude at 9am.
3.That for Christmas in 2023, the child spends time with the mother from 3pm on Christmas Eve to 3pm on Christmas Day and with the father from 3pm Christmas Day to 3pm Boxing Day.
4.Any handovers that do not occur at the child’s school, kindergarten or OSHC/childcare do occur at the entrance of Kmart, [Suburb B] or at such other place as may be agreed between the parties in writing.
5.That the child’s clothing worn to kindergarten on such Friday, including shoes, are to be returned to the mother at handover that evening in the event it being necessary to change the child in the father’s care.
6.That the mother be at liberty to enrol the child at [M School] to commence Reception from Term 1 of 2024.
7.That the father be at liberty to obtain school reports, photographs, newsletters and the like from the child’s school and kindergarten at his sole expense and a copy of this Order stand as authority for the same.
8.That the parties be at liberty to attend all extracurricular activities and kindergarten/school function and events which parents are usually invited to attend.
9.That the parties communicate via email for all communication relating to the care, development and welfare of the child including the topic of handovers.
The mother asserts that her agreement to this regime is evidence of her overall reasonableness and ability to compromise with someone who, in the shape of the father, is difficult to deal with and both unpredictable and secretive. In contrast, it is the father’s position that the mother is inclined to present as reasonable, when it suits her, but has generally worked to undermine his relationship with X. On any view, this is a high conflict family.
THE PRESENT PROCEEDINGS
Ms Mottram commenced interim proceedings on 1 December 2023 requesting an urgent listing. As indicated above, she seeks the immediate suspension of orders enabling Mr Faulkner to spend time with X. She also sought that DCP and SAPOL provide their records to the court presumably in relation to the father and X. In addition, she sought that Mr Faulkner provide details of his medical treatment since January 2023 and undergo a hair follicle test.
As a result of the matters raised in her supporting affidavit, she conceded that she had elected to withhold X from spending time with her father from 15 November onwards and had also withdrawn the child from attending school as she feared Mr Faulkner might attempt to collect her from there.
It is necessary, as best I can, to summarise the allegations made by Ms Mottram. She has not been cross-examined in respect of them. In addition, as far as I know, she has not been interviewed by any person associated by SAPOL or DCP in respect of the matters she has raised. Neither she nor any adult person associated with her was present to observe directly anything untoward occurring between Mr Faulkner and X, who was four years old, when she (X) made the alleged disclosures which are of concern to her (Ms Mottram).
She has not personally asked Mr Faulkner as to why X might have said what she is reported to have said. In the circumstances, I can understand why that would be so because of the tangible animosity between the two. Rather her first inclination was to institute legal proceedings.
The first matter of concern was that in late 2023, whilst on holiday interstate with her little brother and drinking from a drink bottle, X randomly (sic) said I’m drinking from a willy. She was not questioned about why she said this but was told it was something that was not okay to do or say. This may be so, but the comment itself does not appear to be unduly sinister in the sense that it strikes me as the sort of thing a five old child might consider amusing.
The same day, X and C were being bathed together, when [X] started touching [C’s] bottom. Again, Ms Mottram reported that this again was not okay and she (X) needed to respect C’s privacy. Nothing further was apparently done. Neither of these incidents provided any connection to Mr Faulkner directly. Again, children do touch one another. Given their ages, neither child is likely to have any personal knowledge of sexual behaviour.
The significant disclosures were allegedly made in late 2023 when both C and X were again unclothed. In my view, there is nothing extraordinary about this state of affairs. Mr Lindsay describes the allegations as being embedded and contextual. The specifics of what Ms Mottram asserts occurred are as follows:
[In late] 2023 [C] was having some nappy free time, I was cooking and [X] and [C] were within my hearing. [X] asked if she could be nakey like [C] and I said yes as they were about to get ready for bed. [X] began touching [C’s] genitals. I told her it's [C’s] body and his space she is not to touch it or anyone else's. I asked if anybody is touching her private parts, and she began crying and said "Daddy."
She then said she is touched inside her shorts but later said on top of her shorts. [X] did not give clear details about what she meant by this at that time as she was very upset. I did not press her, I comforted her and listened. She mentioned an argument at the father's house and that it had happened in "her other room, her bedroom and [H’s] bedroom. ([H] is the father's partner's son, his partner is [Ms D]).
[The next day], I told [X] that I would have to speak with someone about what she said Daddy did. [X] asked who I was going to tell and I responded, "probably a doctor." She replied, "well what about the police?" I said that I might tell the police and she nodded. I asked her if she felt safe with her daddy and she said, "yes but not when he touches my private parts."
On the same day, in the evening, I asked [X] how she was feeling after telling me about Dad. She replied, "good." I mentioned she wasn't going to see her Dad for a little bit while we figure out how she can be safe and happy. She smiled and said, "that's okay." She appeared relieved. I asked her if there was anything else she wanted to tell me or speak to me about and she gave me her soft [toy] that she named '[…]'. She said, "maybe ask [the toy] if her Daddy touches" while pointing to her bottom and vagina area.
After that conversation [X] returned to the lounge room where the maternal grandmother was. I went to put my younger son to bed. The following morning [X] was acting like a completely different child. Prior to this she had been showing anger and aggression toward all family members.
The context of these disclosures is the child’s allegedly sexualised behaviour towards her brother, which led to her mother attempting to re-frame her behaviour, on the basis that it was unacceptable to her. This apparently led to a leading question: are you being touched? This led to an affirmative answer and the connection to Daddy. How this led to disclosures about being touch on top of her shorts as opposed to the potentially more serious inside shorts is not provided but it is conceded that the details were unclear.
It is not possible to determine from this narrative the date of time or time frame of the touching – the last visit or a more distant one – and more importantly the context – did the touching occur in the bath; whilst getting ready for bed; changing clothes. Ms Mottram does not indicate whether X, a child who was around five years of age, refers to her genitals as her private parts. The expression seems oddly grown up and old fashioned for a five-year-old child. Interestingly, on the mother’s account the child indicates feeling safe with her father.
Apart from the reference to private parts, it is not possible to ascertain whether there is a sexualised content to the touching, in the sense that the person said to be doing the touching is in some way gaining sexual gratification from the touching. In this context, apart from Ms Mottram’s concerns that X should not touch her brother in the bath or when he is not wearing any clothes, there is not suggestion that X’s touching has any explicit sexual content, other than the area of the body which she touches.
It seems improbable that X would have any knowledge of sexual matters. However, the gravamen of the mother’s account (supported by her own mother) is that child’s behaviour and demeanour dramatically improve after she is told that she will not be going to see her father. It also interesting that it is X who apparently raises the prospect of the police being involved.
I accept that Ms Mottram, whose case is that she was present when the child made the disclosures, as she has recorded them, is the person best placed to provide detail of the emotional context in which the disclosures were made. Was she angry with X for touching her brother as she had been forbidden to do the previous day? Did she raise her voice? Was she rebuking X? In these circumstances, was it the tone of the conversation which caused the child to cry.
Given the earlier incidents of touching which emanated from X to C, why did Ms Mottram ask the leading question, which was, in effect, who has been touching you? The implication of which is that it is not possible that the child’s touching of C was innocent curiosity or puerile enjoyment. Axiomatically Ms Mottram has an extremely poor opinion of Mr Faulkner.
The extent to which X is aware of her level of disapprobation of her father is not clear. On balance, it would appear more likely than not that she has picked up on the parties’ mutual hostility for one another. As I previously noted, such hostile environments provide fertile ground for the fostering of suspicions. It may also explain, in psychological terms, why X exhibits anxiety in the lead up to spending time with her father.
In her affidavit raising the issue of sexual abuse, Ms Mottram referred to an earlier incident said to relate to X saying that her father had taught her to pee like a boy i.e. standing up. This was in August of 2023. In addition, the child is said to have drawn a picture of a penis. This has not been provided.
In W & W (abuse allegations: unacceptable risk)[10] the Full Court summarised a number of authorities dealing with abuse allegations and provided guidelines to be utilised by courts, such as this one, in the assessment of whether a parent poses an unacceptable risk to a child, which can be summarised as follows:
[10] W & W (abuse allegations: unacceptable risk) (2005) 34 Fam LR 129.
·The unacceptable risk test requires the court to give real and substantial consideration to the facts of the case concerned in determining whether there is or is not an unacceptable risk of harm befalling a child;
·In so doing, the sorts of questions, which the court should pose for itself, in respect of the allegations concerned, include the following:
·What is the nature of the events alleged to have taken place?
·Who has made the allegations?
·To whom have the allegations been made?
·What level of detail do they involve?
·Over what period of time are the events alleged to have occurred?
·What are the effects exhibited by the child?
·What is the basis of the allegations?
·Are the allegations reasonably based?
·Are the allegations genuinely believed by the person making them?
·What expert evidence has been provided?
·Are there satisfactory explanations for the allegations apart from abuse?
·What are the likely future effects on the child concerned?
·The weight to be attached to the answers arising from these questions will vary from case to case.
Neither Ms Mottram nor Ms K cannot be regarded as being expert witnesses and given their emotional involvement in the case, it cannot be assumed that they will be either entirely dispassionate or objective about what X is said to have disclosed to them. Both seems to be extremely ill-disposed towards Mr Faulkner.
Mr Faulkner himself presents as a difficult and oppositional person from time to time, particularly in the context of these bitterly contested proceedings. His pugnacity is not, for obvious reasons, necessarily indicative of sexual aberrance. He has denied abusing the child, which, of course, is hardly surprising in the circumstances, but apart from such denials, there is little, in my view, which he can do, in practical terms, to negate the mother’s allegations. Rather Ms Mottram apparently assumes the worse of him.
True as it is that Mr Faulkner has not cooperated with Ms Mottram’s request that he provide some medical evidence to negate her concerns that he is psychiatrically compromised and/or drug affected. However, again, the basis of these allegations, rests on Ms Mottram’s suspicions, which arise from the fact that he ceased spending time with X in March of 2023. She sought the intervention of the court in regard to them comparatively recently. I can understand why Mr Faulkner believes they are an invasion of his privacy and are tactically raised.
It is Mr Faulkner’s case that his analysis of the DCP file, which he obtained through a freedom of information request, indicates that eight notifications of child abuse have been made in respect of X, none of which have been formally investigated, certainly not to the extent of any person from the Department asking him questions about the matters.
In these circumstances, the implication of his affidavit[11] is that the mother is either hysterically mistaken about what she believes or is maliciously/tactically motivated in the manner in which she has framed her case. In my view, neither such scenario can be readily negated on the basis of the current evidence available.
[11] Affidavit of the father filed 11 December 2023 at [8] – [20].
In all the circumstances, it would seem to me that DCP are currently not persuaded to take any active role in the family. I am concerned that the most recent letter from the Department, which indicates some 25 recent notifications, may be reflective of a misuse of the system. Given the state of the evidence, I do not consider that the Department can be criticised for not taking a more proactive approach in the matter.
In my view, there is a lack of clarity about what is the abuse alleged and when it occurred. Certainly, it seems improbable that any interview with X herself, given her age, will result in more cogent evidence. Mr Faulkner denies any malfeasance. There are no other witnesses to the event. There may be other explanations as to why X is said to be emotionally distressed.
In her affidavit of 1 December 2023, Ms Mottram deposed that, in late 2023 she reported to X that she (Ms Mottram) had told police that daddy had touched her private parts to which X responded good. In this context, Ms Mottram told X that she would be going to see a doctor, presumably about her having been touched.
In her recently filed affidavit, Ms Mottram confirms that she has taken X to see her general medical practitioner, Dr N. He has provided a report dated 25 January 2024. He confirms that he has made two notifications to DCP as consequence of matters told to him by Ms Mottram. He also confirms that Ms Mottram has reported to him being the victim of domestic violence during the parties’ relationship and ongoing verbal abusive and manipulative behaviour whilst Ms Mottram and Mr Faulkner have shared the custody of [X].
In this context, Dr N has spoken with X directly about having been both physically neglected and sexually abused by her father. In respect of the former, the complaint was that Mr Faulkner was not available to tend to X, during the night, after she had wet the bed, because his bedroom door was locked. Mr Faulkner has not as yet responded to this allegation in any formal way.
In respect of the latter, Dr N’s report, indicates the following:
As for the alleged sexual abuse, I have not had direct reports form [X]. When these concerns were brought to me I had a long discussion with [X] about the people in her life and the things she likes doing. Following on from her report of the wetting through the night I asked if her father had ever touched her in the private area. She then got under the chair and said “I don’t know, I don’t know.[12]
[12] Annexure MM2 to affidavit of the mother filed 5 February 2024.
For obvious reasons, this is concerning. It cannot be taken as any form of confirmation of abuse. Rather, it may well indicate that the child is being occasioned emotional distress at being questioned again about these issues. This may potentially amount to systems abuse of the child. Certainly, it is likely to render any further interview of the child, either by police or DCP, highly problematic, in my view.
Dr N indicates that Ms Mottram as suffering a significant level of stress arising from her relationship with Mr Faulkner. He has referred her to Dr P, a psychologist. Dr P has also made notifications to the Department as a consequence of what she has been told by Ms Mottram. Ms Mottram herself concedes that after 14 December 2023, notwithstanding Mr Faulkner has not had contact with X, she has made a further complaint to SAPOL.
In addition, in early 2024, an interim domestic violence order was granted against Mr Faulkner on the basis that he had spat on her, following a verbal argument on an unspecified date in 2018 and punched her on the arm, causing a bruise, in 2020. Ms Mottram conceded that, as was the case prior to the 14 December 2023 hearing, she continued to withhold X from attending kindergarten out of fear Mr Faulkner would abduct her.
In terms of her decision not to allow X to engage with her father, Ms Mottram deposes as follows:
[X’s] relationship with her father has been severed because he poses an unreasonable risk of serious harm to her. Her mood has significantly improved and her physical expressions of anxiety have disappeared since time spending with the father ceased. [X] is now a much happier and relaxed child. She does not ask for her father.
The problem with this assessment, in my view, is that it solely emanates from Ms Mottram and those associated with her. She is not able to mount any professional or independent evidence, at this juncture, to support her assertion that Mr Faulkner poses a risk to the child. Her view is not consistent with that provided by Ms L.
The professional persons engaged by Ms Mottram rely on her accounts in respect of their assessments of the risks which Mr Faulkner poses. Although clearly it is the case that there have been multifarious reports to the Department and SAPOL, at this juncture, there is scant, if any evidence to indicate that either proposes to do anything protective so far as X herself is concerned.
At this point, I am uncertain whether Ms Mottram and Mr E remain separated. As indicated above, Mr E has not provided an affidavit in the proceedings. It remains Mr Faulkner’s position that Mr E himself is an antisocial person, who poses a risk to X. In respect of the alleged assault occasioned by Mr Faulkner in late 2023, Ms Mottram deposes as follows:
On [the previous day], [X], [C] and I stayed at my mum's house as I had been afraid to return home in case the father came to my house. The following morning […] I left [X] with my mum and returned home with my son [C] to organise our things for a holiday […] for the weekend. [C’s] father [Mr E] came over to spend some time with [C] before we went away.
[Mr E] and I left my house in separate cars at roughly 2 pm. Both [Mr E] and I drove towards [the same street]. [Mr E] was turning left and I was turning right to go pick up [X] from my mums home. As [Mr E] turned, I saw the father driving behind him.
I received a phone call from [Mr E] at 2.07 pm telling me I needed to be careful because the father had just attacked him whilst sitting in his car. The father has [assaulted Mr E] and [injured him].
[Mr E] made a report to the police… [Mr E] told me the police were investigating, that they has CCTV footage of the incident and that multiple witnesses had seen the attack and reported it. The father is currently facing serious assault charges.
As previously indicated, SAPOL records confirm report of an assault but not that formal charges had been laid. The record also indicates that it was on the following day that Ms Mottram made her complaints of being the victim of family violence which form the basis of the interim family violence order application.
No explanation has been provided as to why Mr E has not provided an affidavit as to what occurred in late 2023. As previously indicated, Mr Faulkner has been ambivalent as to what occurred and his degree of involvement in it. He is implicitly critical that Ms Mottram did not raise any issue until he brought his application. Ms Mottram’s affidavit does not provide any context for the assault.
The concept of family violence is defined in section 4AB(1) of the Act. It means:
[V]iolent, 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.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
•an assault;
•a sexual assault or other sexually abusive behaviour;
•stalking;
•repeated derogatory taunts;
I accept that Mr E, regardless of the lack of clarity arising in regards to his relationship with Ms Mottram and X is to be approached on the basis that he is a family member of X and her mother. As such, if the details of the assault are true, it is only reasonable that Ms Mottram would be fearful and feel intimidated. The extent of the injuries said to have been sustained by Mr E are serious.
It would seem to me that Ms Mottram has had ample time to obtain such an affidavit from Mr E. Indeed she has had sufficient time to obtain one from Mr J, who is Ms D’s former de facto partner. He is not complimentary of her capacity as a parent asserting that she abuses prescribed medication, alcohol, cannabis and suffers from a mental health disorder. He further deposes that he is currently challenging Ms D’s care of H but provides no details as to the current status of the proceedings, particularly whether Ms D has any criticisms of him. In these circumstances, I do not find it a particularly helpful affidavit.
As with other aspects of this case, it was filed late, has peripheral connection to issues pertaining to X and seems calculated to raise culpability by association. It can only heighten the already febrile atmosphere of these proceedings. In my view, the only significant thing that has occurred since 14 December 2023 is the incident involving Mr E.
However, it is clear that Ms Mottram has engaged with multiple individuals in her efforts to provide evidence that she is entitled to disregard the court’s order regarding arrangements for X’s care. If what Ms Mottram alleges is true, Mr Faulkner has abused X, which must have the possibility of causing her serious psychological harm.
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
I acknowledge that the matters she has raised are serious, as are the implications of those matters for her psychological functioning and capacity to parent X, as her primary carer, if she genuinely believes X has been abused, even if mistakenly. In B and B[13] the Full Court said as follows:
…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
[13] B and B (1993) FLC 92-357 at 79,780.
Such consideration becomes more germane in cases involving young children, who lack cognitive and verbal maturity. It may be impossible for there to be a definitive finding that abuse has or has not occurred. X, as was seen with Dr N, was not willing or able to provide details in line with what her mother alleged she had said.
It seems improbable that any other police officer or social worker, at this juncture will be more successful. In any event, given X’s level of cognitive development, any account she does give, at many weeks remove from the disputed events and the fact that she has clearly been quizzed about it by many others, in my view, renders any subsequent more coherent account, which she may conceivably provide, essentially meaningless in forensic terms.
Well-meaning attempts to persuade Ms Mottram as to the possibility that she is mistaken about what she has alleged are not likely to be fruitful. In addition, as with Mr Faulkner, she is hardly likely to indicate that she has confected the claim to discredit Mr Faulkner.
At the same time, to deprive X of the benefits of having a meaningful level of relationship with her father, on the basis of concerns that can never to be negated to a standard satisfactory to Ms Mottram, may be contrary to X’s best interests, both in the short and long term given her right to have a meaningful level of relationship with not one but both of her parents.
Given each parties application to the court, it does not fall to Ms Mottram to assess the risk arising. That is my role alone given the controversy between the parties and their respective applications to the court. I accept that I must be mindful of the consequence of any determination, which I have to make in this regard, given its potential implications for Ms Mottram. However, at the same time, I cannot condone any inclination which she and her lawyers may have to exercise self-help and in effect do as she feels inclined to do regardless of the court’s order.
In addition, I am mindful of the consequence of being hyper-cautious in an attempt to placate Ms Mottram. This can only make Mr Faulkner even more resentful and precipitate still more corrosive conflict between all concerned with the potential for a cascade of unintended consequences and the possible exposure of X to forms of systems abuse. In short, the case is replete with risk and presents no obvious solution, particularly at this early provisional stage.
Pursuant to the provisions of section 68LA of the Act, the ICL is required to consider all the available evidence and then advocate the outcome which she considers will best serve X’s interests. I am concerned that this has been a difficult task for her given the late stage at which Ms Mottram has provided her most recent allegations. In my view, it is significant that the ICL did not speak against the order which the court made on 14 December 2023.
In this context, the outcome proposed by Ms Horvat is a very cautious one. In my view, its major deficit is that its practical implications do not seem to have been thought through or indeed discussed directly with Mr Faulkner. Which play café; what day; how long?
Notwithstanding the obvious evidentiary difficulties, arising at the interim stage, and the problems implicit in each the outcomes advocated by each of the parties, the court must still nonetheless make a decision and put in place the orders, which it considers will best regulate the situation, so far as X is concerned, according to the relevant principles contained in the Family Law Act 1975 and the binding authorities of the Family Court itself.
In this context, I turn to how the court is directed to assess risk. In Deiter & Deiter[14] the Full Court said as follows:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[14] See Deiter & Deiter [2011] FamCAFC 82 at [61].
In SS v AH[15] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned, as follows:
[A]part from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[15] See SS v AH [2010] FamCAFC 13 at [100].
In the present matter, there are few, if any agreed facts. I acknowledge that if X has been sexually abused, to continue to spend time with her abuser and be potentially open to continued abuse will be horrendous, but so will her abruptly ceasing to spend time with her father on the basis of a misinterpretation of what she is alleged to have said.
I have attempted to look carefully at what the child is said to have disclosed and tried to put it in context, bearing in mind X’s age and the fact that it seems improbable at this juncture that any further evidence is likely to be able to be obtained.
In these circumstances, it seems to me to be against the weight of evidence that Mr Faulkner has sexually abused X, notwithstanding Ms Mottram’s contention that he has. I reach this conclusion on the basis of a lack of objective evidence of any such assault or disclosure to a person other than Ms Mottram or a person closely associated with her. There is in my view, a lack of clarity about the notification in general terms, which is not of sufficient moment to deprive the child of having any level of relationship with her father, as this stage, given the positive aspects to that relationship identified by Ms L in the Family Report.
However, some element of risk must always remain. In my view, this risk does not become more severe just because Mr Faulkner has elected to represent himself and has not always presented himself in a conciliatory or calm manner. He remains entitled to have the evidence evaluated in the case in a calm and objective manner.
One aspect of the risk is that Ms Mottram’s care of X will be undermined by her anxiety. The response of the court must be proportionate to the degree of risk arising from this state of affairs and the possibility, however remote that possibility is assessed to be, that there has been some form of abuse.
The response to that risk must also include an assessment of the consequence of the severance of a valuable emotional relationship for a child on the basis of a hysterical or even malicious over-reaction to an innocent comment of a child, who has not, in my view, provided an unequivocal account of having been touched in a manner calculated to achieve sexual gratification in the person alleged to have handled her inappropriately, which allegation is fervently denied. In addition, the degree of response must also be informed by the fact that the decision arises at an interim stage and is thus capable of revision at final hearing.
The Full Court, in the case of Marvel & Marvel (No 2)[16] summarised the difficulties arising for the court at the interim stage and said as follows in respect of the nature of the approach to be taken and the rationale for such an approach:
Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing.
[16] See Marvel & Marvel (No 2) [2010] FamCAFC 101 at [120].
Similar considerations apply to the assessment of the risk Mr Faulkner represents on account of the allegation that he has committed a serious act of family violence against Mr E. There is no cogent evidence that the assault has occurred other than the hearsay account of the mother and the terse entry in the police record. In my view, some caution must be exercised in reducing X’s relationship with her father to a marked degree on the basis of such evidence.
However, at the same time, the allegation, at its highest, is extremely serious. In effect, Mr Faulkner stalked Mr E, assaulted him and injured him. A person who would engage in such conduct must be a questionable role model for a child of X’s age and it is not the behaviour of a child focussed parent. However, I do not consider that it can be established that X was exposed to this family violence in the sense envisaged by section 4AB(3) of the Act.
The final hearing is scheduled for 21 March this year. It is a relatively short time away. Those advising the mother indicate the time scheduled for the hearing is now inadequate and the case should be refixed for a longer period of time. They also wish for a further Family Report to be prepared. Inevitably, if these requests are acceded to the hearing will be delayed, which will only add to the resentment which Mr Faulkner has expressed throughout the case to date.
It is difficult for me to see what a further report will achieve. Ms L will not be able to determine the truth of the allegations by any interview with X. In this context, it being noted by her that, as at the date of her report (20 April 2022) X’s age and level of communication militated against a direct interview. Ms L also wished to avoid placing undue pressure on her from such an interview. At least inferentially, this is what occurred when Dr N interviewed her at Ms Mottram’s instigation.
I decline to order another Family Report. I also consider given the gravity of the mother’s allegations, it would not be in the interests of X or indeed the administration of justice generally for the hearing to be delayed. If the trial takes longer than the time allocated, so be it. In my view, the two days allocated will allow at least a start to be made to the unravelling of the accusations and counter accusations which currently surround X.
Whether an order is made under section 102NA or not, the trial will be extraordinarily difficult to manage given the issues in the case and the demeanours of each of the major actors in it. If Mr Faulkner is banned from cross-examining Ms Mottram and chooses not to avail himself of the Commonwealth Scheme, he will feel hard done by and it may be the case that issues which should be put to her will not be. I cannot say.
On the other hand, the prospect of Mr Faulkner cross-examining her, given the current factual matrix fills me with foreboding. The tenor of Dr P’s report is that she views Ms Mottram as psychologically vulnerable in the context of her relationship with Mr Faulkner. As such, notwithstanding the indication of her counsel to the contrary, it would seem obvious to me that she is a prime example of a person to whom the legislature intended the regime created by it in section 102NA was directed towards.
Similarly, the Mr Faulkner is a prime candidate to avail himself of the Commonwealth Family Violence and Cross-Examination of Parties Scheme. In my view the fact that he is personally disinclined to apply for it is a matter for him, given the consequences of section 102NA have been explained to him at some length. I will make the order banning the parties from cross‑examining each other pursuant to the provisions of the section.
The final issue to be determined is what is a proportionate response to the various allegations raised in the matter. I do not consider a play café is feasible. Given the tensions between the parties and the as yet largely inchoate issues raised about the assault on Mr E, I also have concerns as to the feasibility of a return to the existing regime or one which includes extended overnight periods. In this respect my focus is on X and keep her as calm as possible in these invidious circumstances.
I have come to the conclusion that, in the four or five weeks leading up to the trial, it is calculated to be in X’s best interests that she resumes her relationship with her father by spending time with him on each Saturday commencing 17 February 2024 between 9.00 am and 6.00 pm, the intention being the two can have lunch and an evening meal together before her return in time for preparations for bed, at her mother’s home.
Regrettably, it seems to me that the child will have to be exchanged in the secure confines of a police station to avoid any confrontation occurring in X’s presence. I nominate the Suburb B Police Station.
I do not propose to make these orders subject to the production of a hair follicle test by Mr Faulkner or any independent psychiatric treatment. Ms L did not recommend such a test and I am concerned that such interventions will delay the proceedings further. Significantly I do not consider that the mother has provided a sufficient forensic base to support either such intervention, which depend on her mistrust of Mr Faulkner.
These orders are provisional and are intended as a form of triage. The mother is required to follow them other than in circumstances of emergency relating to X’s health. All concerned should note that they are capable of modification if and when more evidence comes to hand.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and six (206) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 15 February 2024
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