MUHAMMAD & SARTORE

[2019] FamCA 182

FAMILY COURT OF AUSTRALIA

MUHAMMAD & SARTORE [2019] FamCA 182

FAMILY LAW – CHILDREN – Where the mother makes an allegation that the father sexually abused the child – where the allegations of sexual abuse are not proved – where the expert identifies that the mother’s relationship with the child is enmeshed – where the mother seeks sole parental responsibility of the child – where the expert identifies that the mother is highly anxious and emotionally disturbed and requires therapy to assist her to accept the child’s relationship with her father – where the expert identified that the child would benefit from a meaningful relationship with the father -  where the father seeks overnight time with the child – where it is ordered that the child gradually commence spending overnight time with the father – where the parents are ordered to equally share parental responsibility – where it was ordered by consent that the child live with the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC.

Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Mr Muhammad

RESPONDENT: Ms Sartore

INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers

FILE NUMBER: PAC 4961 of 2015

DATE DELIVERED: 29 March 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 9, 10 and 11 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: White and Associates

COUNSEL FOR THE RESPONDENT: Ms Stolier

SOLICITOR FOR THE RESPONDENT: Mahony Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

SOLICITOR FOR THE I INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers

Orders

1. That the mother and father shall have equal shared parental responsibility for X (“the child”) born … 2010.

2. That the child shall spend time with the father as follows:

   (a)       From the date of this order until the final weekend of June 2019:

   (i)Each alternate weekend from 9:00 am until 5:00 pm on Saturday and Sunday;

   (ii)Each Wednesday from after school until 7:00 pm during school terms and from 9:00 am until 7:00pm in school holidays;

   (b)       From the first weekend of July 2019 as follows:

   (i)During school terms:

   A.   Each alternate weekend from 9:00 am Saturday until 5:00 pm Sunday with the time to recommence on the first weekend of each school term.

   B.   Each Wednesday from after school until 7:00 pm.

   (ii)For the school holiday period as agreed between the parties and failing agreement:

   A.   For the Term 2 school holidays in 2019 from 9:00 am on the first Saturday until 5:00 pm Monday and the first Wednesday from 9:00 am until 5:00 pm;

   B.   For the Term 3 school holidays in 2019 from 9:00 am on the first Saturday until 5:00 pm Tuesday and the first Wednesday from 9:00 am until 5:00 pm;

   C.   For the Christmas school holidays in 2019/2020 from 10:00 am Saturday until 5:00 pm Thursday each alternate week commencing on the first Saturday of the school holidays;

   D.   Thereafter from 2020 during the school holidays at the end of Term 1, 2 and 3 from 10:00 am on the first Saturday until 5:00 pm on the middle Saturday;

   E.    Thereafter from 2020 during the Christmas school holidays each alternate week commencing at 10:00 am on the first Saturday.

3. That commencing in 2019, the child shall spend the Christmas period between Christmas Eve and Boxing Day with the parents as follows:

   (i)From 2:00 pm Christmas Eve until 2:00 pm Christmas Day with the father in 2019 and each alternate year thereafter;

   (ii)From 2:00 pm Christmas Day until 2:00 pm Boxing Day with the father in 2020 and each alternate year thereafter;

   (iii)With the mother for the remainder of the time.

4. For the purpose of changeover other than school changeovers, the parties shall meet at the Suburb B Library unless otherwise agreed between the parties in writing.

BY CONSENT

1. That the mother and father are restrained from denigrating the other parent or members of the other parent’s family to or in the presence of hearing or the child or permitting any other person to do so.

2. The parents are restrained from physically disciplining or chastising the child or permitting any other person to do so.

3. That the parents communicate via text message in relation to all parenting matters except in an emergency, when they shall communicate by telephone call as soon as practicable.

4. That the parents be restrained from explaining or attempting to explain to the child the orders made or any other matter in relation to these proceedings.

5. That the mother shall forthwith do all things and sign all documents necessary to ensure that the school is informed that there is no prohibition on the father collecting the child from school and list the father as an emergency contact person.

6. That the Independent Children’s Lawyer shall make such arrangements that are required to explain to the child these Orders. This is not to occur at the premises of the Family Court of Australia, and the parents will facilitate such arrangements without informing the child as to the purpose of the arrangements.

7. That the parties shall ensure that the child only views films and computer games as classified suitable for the child by reference to the Australian Classifications as set by the Department of Communications and the Arts.

8. That the child, X, a female, born … 2010 be removed from the Airport Watch List.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4961 of 2015

Mr Muhammad

Applicant

And

Ms Sartore

Respondent

REASONS FOR JUDGMENT

Introduction

1. X (“the child”) is a little girl aged eight. Her mother (“the mother”) who was born and raised in Australia, and her father (“the father”) who obtained asylum as a refugee from Country C in Country D and subsequently moved to Australia, separated in 2013. They cannot agree about her future parenting.

2. X has lived with her mother since her parents separated and spends eight hours each Saturday with her father. It is the father’s case that the mother has attempted to alienate the child from him. He seeks orders that he and the mother equally share parental responsibility for the child and that the child live with the mother and spend time with him each alternate weekend from Saturday morning to Sunday afternoon and for a few hours each Wednesday after school and half of the school holidays.

3. It is the mother’s case that the father poses an unacceptable risk of harm to the child on the basis that he may sexually abuse her and has no capacity to care for the child as he proposes.  She proposes that the child continue to live with her and that the time the child currently spends with the father be marginally increased by including a few hours after school on a Wednesday.

4. The Independent Children’s Lawyer (“ICL”) seeks orders in very similar terms to the father’s proposal.

5. As both parties and the ICL proposed orders that would see the child live with the mother on the last day of the hearing final orders were made by consent of the parties to that effect. Orders were also made with the consent of the parties relating to providing notifications and information to one another, restraining the mother from permitting the child to attend any psychologist, psychiatrist or therapist without the father’s written consent and for the mother to undergo therapy herself.

6. The questions to be determined are whether the child’s interests are best met by an order for equal shared parental responsibility or whether parental responsibility should be solely allocated to the mother and what order with respect to the father’s time with the child is proper having regard to the paramount consideration being the best interests of the child.

Background

1. The mother who is 49 and the father who is 55 met in July 2008 and began a relationship in early 2009. The father has two daughters and a son (“the father’s other children”) from a previous relationship who were then aged approximately 11, nine and five respectively.

2. The parties’ only child was born in 2010. Shortly before giving birth the mother stopped working in order to be the primary carer for the child.

3. The child slept with the parents during her infancy and up until the time of separation. The mother regularly breastfed the child throughout this period, and for a number of years thereafter. The child was weaned from regular breastfeeding at the age of six though it appears that the child has been provided with breastmilk by the mother as a form of comfort on some occasions after the age of six.

4. The mother alleges that during their relationship the father behaved in a manner towards her that would fall within the definition of family violence. This is disputed by the father and is a matter to which I will return.

5. The father contends that the mother was a hoarder and that the house was cluttered to the extent that it was dangerous and posed a risk of physical harm to the residents.  This is also a matter of dispute.

6. There is some dispute between the parties about the history of their relationship including the date of separation. It is common ground however that by late 2013 when the child was three the parties had physically separated and were no longer living together. The mother and father purchased a house together at the time that they were having serious relationship difficulties and following separation agreement was reached whereby the father transferred his interest in that home to the mother upon payment of a sum of money by her.

7. In late 2013 about a week after separation the father suffered a heart attack and has not returned to work since this time.

8. In April 2014 a notification was made to the Department of Family and Community Services (“Community Services”) about the state of the mother’s home which was reported to be cluttered, unclean and unsafe. It was also reported that the mother’s breastfeeding of the child through the night was causing the child to have tooth decay. This report was closed without further assessment.

9. From the time of separation until May 2015 there is some dispute regarding the exact amount of time the father spent with the child, however it is common ground that it was very limited.

10. In May 2015 the parties attended a family dispute resolution conference and agreed to a parenting plan which provided for the parents to share parental responsibility for the child, for the child to live with the mother and spend regular time with the father for block periods of a few hours on two occasions per week and where possible this time was to occur in the presence of the father’s other children. The child’s time with the father thereafter was not exactly in accordance with these orders. Rather it only occurred each Saturday for a block period of four hours.

11. The father filed an Initiating Application in the Federal Circuit Court in October 2015 seeking orders that the parents share parental responsibility, that the child live with him and spend alternate weekends with the mother. He also sought a restraint on the mother relocating from the Sydney Metropolitan area.

12. In March 2016 the mother filed a Response seeking sole parental responsibility for the child, that the child live with her and spend six hours each Saturday with the father.  She also sought that the father be restrained from being under the influence of illicit drugs or drinking to excess while in the presence of the child and that the child’s name be placed on the Airport Watch List.

13. On 29 April 2016 an ICL was appointed and the parties were ordered to attend upon a family consultant for the purpose of a Child Dispute Conference. An order was also made on this date in chambers for the child’s name to be placed on the Airport Watch List, following the mother expressing concerns that the father would take the child overseas with him.

14. On the 11 August 2016 the parties participated in interviews with a family consultant and a Child Dispute Conference Memorandum was released to assist the court. This Memorandum indicated that the parties’ relationship was entrenched in conflict and the family consultant held concerns that the conflictual manner in which the parties interacted would lead to an escalation in allegations and counter-allegations. The family consultant recommended that the parties engage in post separation parenting courses and that the father undertake drug testing.

15. A hearing in relation to the father’s application for interim orders was fixed for 15 September 2016.

16. The mother alleges that on 3 September 2016 the child reported to her that the father “tickled [her] wee wee”.  The mother considered this to be an allegation of sexual abuse and contacted police.  Reports were also made to Community Services about the child’s disclosure.

17. An investigation into the matter was allocated to a Joint Investigative Response Team[1] (“JIRT”). JIRT conducted an interview with the child who was then six.  The child disclosed that the father had tickled her on the genitals and expressed a strong wish at some stages in a conversation after the interview to have no contact with him. JIRT also interviewed the father who denied all the allegations. The investigation substantiated that the child was at risk of sexual harm from the father.

    [1] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.

18. The question of whether the father sexually abused the child and whether he poses an unacceptable risk of harm to her is a significant matter of dispute in the proceedings to which I will return.

19. On 14 September 2016 the mother filed an Application in a Case seeking that the father’s time with the child be suspended or alternatively that he spend time with the child supervised at a contact centre. The following day interim orders were made with the consent of the parties that the child live with the mother, the father’s time with the child be suspended and for the proceedings to be transferred to the Family Court.

20. A provisional Apprehended Domestic Violence Order (“ADVO”) against the father for the protection of the child was made on 27 September 2016.

21. Community Services also referred the child to a sexual assault service for counselling and the investigation was closed. 

22. On 10 October 2016 the proceedings were allocated to the Magellan Program[2] due to the child’s disclosure of sexual assault. A Magellan Report was ordered from Community Services.

    [2] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of The Department with the family.

23. In September 2016 the child was assessed by a paediatrician, and diagnosed with Asperger’s Syndrome and Attention Deficit Hyperactivity Disorder (“ADHD”).

24. On 6 December 2016 an ADVO was made on a final basis against the father for the protection of the child for a period of two years. The orders restrained the father contacting the child or going within 100 meters of her school or home.

25. In February 2017 the mother and the child commenced therapy with a counsellor from a sexual assault service.

26. On 26 April 2017 the ADVO was revoked in the District Court.

27. Due to the allegations made by the mother that the father regularly used illicit drugs, orders were made in April 2017 for the father to undergo urinalysis testing for illicit substances within 48 hours of a request by the ICL. The father tendered documents which indicate that he underwent urinalysis testing on three occasions being 31 March 2016, 27 September 2017 and 16 August 2018 which were all returned negative for illicit substances.

28. In April 2017 an expert child and adult psychiatrist (“the expert”) was appointed to assist the court by providing a report. The parties met with the expert in June 2017 and the report (“the expert report”) was released to the parties on 31 August 2017.

29. The expert formed the view that the father did not pose an unacceptable risk of harm to the child and that the mother needed psychological treatment and parenting assistance for the child to remain in her primary care. He further recommended that the father’s time with the child gradually increase and become unsupervised.

30. On 17 October 2017 interim orders were made with the consent of the parties for the child to spend time with the father each Saturday initially supervised by the paternal family, increasing to a period of eight hours without supervision after a few months.

31. By this stage the child was still engaged with a sexual assault counsellor.  On 17 October 2017 the parties were also restrained from engaging the child in any sexual abuse counselling.

32. On 31 October 2017 the child began attending upon a new therapist and from this date until the time of the final hearing had attended 17 therapy sessions.

33. On 19 April 2018 the child was reviewed by her paediatrician who observed that her anxiety had increased due to a change in teacher and new class at school and diagnosed her with an anxiety disorder and recommended she undergo psychological intervention.

34. The final hearing occurred over three days in October 2018.

The Areas of Dispute

The father’s alleged violence including family violence

1. The mother alleges that the father was “emotionally, mentally and verbally abusive towards [her]” when the relationship was intact.  Further, although she does not make a general allegation that the father physically assaulted her she deposes that the father “often squeezed me hard on the arms and legs which left bruises” in the course of arguments or if he was unhappy with her.

2. Although the mother deposes that the child was present “on many of the occasions when [the father] was abusive towards me” the examples she gives of this occurring are of the child being present during arguments between she and the father. 

3. The mother also makes general complaints that the father belittled her by making remarks that she considered to be “critical and derogatory”. She gives as an example the father saying “It’s your fault.  You’re doing it wrong.  You should be doing it this way.” 

4. Further, the mother alleges that the father made threats towards her that he would “slap [her] in the head” and told her that she “deserve [d] to be slapped hard” or “deserve [d] to be fucked in the arse by men”.

5. The mother makes broad allegations of the father behaving in a controlling manner such as dictating the way she should dress and which health professionals she should see and deposes on a specific occasion that he told her mother “don’t come here again”.  The mother also annexes to her affidavit a series of written conditions that the father prepared for her at a time when they were experiencing difficulties in their relationship which the mother considered a controlling act on his behalf.

6. Under cross-examination the father denied that he was abusive or controlling and said that the series of written conditions were suggestions that he made in the context of their relationship ending and that he also had suggested to the mother that she write a similar document.  He agreed however, that if the suggestions were not followed then the parties would separate.

1. The mother deposes that the father has a violent past and has previously killed a person. She is also concerned the husband associates with people involved in crime including drug dealers and suppliers and a person “who has been investigated for child sexual offences” and alleges that these people have been brought into contact with the child. She also deposes to the father attacking a restaurant owner who owed him money “with a chain and pole” contracting a person “to hurt a man who owed him money for a job” and being involved in extortion for which she says he was charged.  

2. The father denies ever being charged with a criminal offence or contracting a person to hurt someone who owed him money.  Under cross-examination in relation to this last matter the father says he successfully took legal steps to recover money owed to him.  The father denied associating with drug dealers or knowing a person who had been investigated for child sexual assault.  The most serious allegations that the mother makes against the father (that he murdered a person and stabbed other people in Country E and attacked a restaurant owner with a chain and pole) were not explored with the father under cross-examination.  He was also not asked about exposing the child to any criminal conduct or criminals.

3. The mother deposes to contacting a domestic violence service at an unspecified time and that arrangements were made by that service to fit deadbolts and security lights at her home.  She confirmed under cross-examination that she arranged for this to be done because she was “scared for [her] life” on the basis of the father’s history of violent behaviour such as murdering a person in Country E, becoming involved in a rebellion and associating with criminals. She conceded however that this conduct overseas occurred well prior to her relationship with her father but she had no fears of him until after separation.

4. The mother also deposed to a confusing incident in which the father hung up on her in the course of a telephone conversation and a tree burnt down next to her house the next day which made her fearful for her life.

5. In summary in relation to all the matters relating to the father’s violent past, the mother agreed under cross examination that all the concerns she had about the father’s history and conduct were present when she entered into the parenting plan in May 2015. 

Allegations of father’s abuse of the child

1. It is central to the mother’s proposed orders that the father poses an unacceptable risk of harm to the child though she accepts that this risk can be mitigated by the child spending limited time with the father during the day time only.  It is the mother’s case that the risk of harm posed by the father arises from his abusive conduct towards the child that she contends has occurred in the past, and the risk it may occur again in the future. 

2. The father denies that he has ever been abusive to the child on any occasion and contends that he poses no risk of harm to the child on this or any other basis. 

3. In Deiter v Deiter[3] the Full Court explained in the context of interim parenting orders that risk assessment comprises two elements.  The Court said at [61]:

   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. 

   [3] [2011] FamCAFC 82.

4. The harmful events alleged by the mother relate to physical and sexual abuse of the child.  The first matter to consider is the likelihood of the occurrence of these harmful events.

5. In M v M[4] the High Court said when discussing allegations of sexual abuse at [23] – [25]:

   No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….

   In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   [4] (1988) 166 CLR 69; [1988] HCA 68.

6. In M v M (supra), the High Court also said at [18]:

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

7. In Johnson & Page[5]  the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.

   [5] [2007] FamCA 1235 at [72].

8. The principles encapsulating “unacceptable risk” and the standard of proof have been extended to other forms of abuse[6] and will be applied when determining the allegations issue of sexual and physical abuse in this matter.

   [6] See eg Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).

9. I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk.  One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[7], where the Full Court noted at [111]:

   We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.

   [7] (2005) FLC 93–235.

10. I will therefore first consider whether the mother’s allegations of abuse have been proven to the requisite standard as well as considering whether or not an unacceptable risk of abuse exists.

Allegations of physical abuse

1. According to the mother’s affidavit after spending time with the father on 15 August 2015 the child reported that she “hated today, daddy slapped me in the face”.  The mother deposes that she noticed that the child’s cheek was slightly pinker than the other but there did not seem to be any significant marks.  The mother says that she told the child that “daddy is not allowed to hit you.  You tell him that if he tries to do it again”.  The mother does not depose to raising this matter with the father but says that she phoned the police for advice the following week and claims to have been told that it would not be worth pressing charges without more concrete evidence. 

2. Under cross-examination the father denied using physical discipline with the child, of slapping the child on the face and was not aware of Community Services being informed about any complaint of physical violence perpetrated by him. 

Allegations of sexual abuse

1. It is common ground that on Friday 2 September 2016 the parties exchanged text messages and it was agreed that instead of the child spending time with the father as usual on the following day this would occur on Sunday 4 September 2016, which was Father’s Day. 

2. The father deposes that on Saturday 3 September he received a phone call from the child at 10am in which the child told him that she was looking forward to seeing him tomorrow.

3. The mother deposes in her affidavit that on 3 September 2016 the child made a disclosure which the mother regarded as an allegation of sexual abuse. Her account of that conversation is as follows:

   I was changing [the child’s] clothing. I was changing her out of her pyjamas into her casual clothes for the day. As I took off her pyjama pants, [the child] laid back onto the bed and spread her legs apart. [the child] was in her underwear and pyjamas t-shirt and said to me words to the effect of “mummy, tickle my wee wee.” … I said words to the effect of “No, why would I do that?” [the child] responded to me words to the effect of “daddy does”. I said to [the child] words to the effect of “no, he doesn’t”, to which she responded words to the effect of “he does”… I continued to dress [the child] and said to her words to the effect of “that is not allowed and you need to tell your teacher”.

4. It is the mother’s evidence that shortly after this conversation she phoned the police and while she and the child waited for the police officer to arrive she asked the child further questions about the alleged abuse.  Those questions include “does he do it all the time?” to which the child responded “um no, just like four times, like once a week”.

5. The father deposes that on the Sunday when he was due to see the child he sent the mother a text message at about 8.45am asking her not to be late and that he received a reply in which the mother told him that the child would not be coming to him today because she wanted to stay home.  Later in the afternoon the father received a further text message from the mother in which she told him it looked like the child had the flu. 

6. Two days later the mother took the child to a doctor, as the child had a fever. The mother says she reported the child’s disclosure to the doctor at the child’s request.  The doctor asked the child some questions about the incident.

7. According to the mother, the child reportedly was withdrawn and complained of an upset stomach in the days and weeks following the disclosure.

8. The child was interviewed by JIRT on 12 September 2016. 

9. The father was also interviewed on 12 September 2016 by a FACS caseworker in relation to a number of allegations that had been made against him. According to the Magellan Report the father denied all allegations of domestic violence and engagements with criminals. So far as the sexual abuse matter is concerned he denied touching the child around her genitals and said that he had not changed the child other than on an occasion the previous year when he changed her out of a wetsuit. The father also said that the child does not require his assistance with changing and he has not showered her since the age of two.

10. In these proceedings the father denies all allegations of sexual abuse. There was very limited cross-examination of the father on the issue of the alleged sexual abuse.  When asked whether he had ever touched his daughter’s “wee wee” the father denied it and did not know why the child may have said that.

11. Following the JIRT interview the mother took the child to stay “in a shelter” overnight deposing that she was fearful of the father. Under cross-examination the mother said that although she had attended a shelter there was no room to accommodate her and the child.  The mother and child were directed to other premises that the mother felt were unsuitable and they ended up spending the night on a couch at a friend’s home.

12. On 15 September 2016 the father’s application for interim orders was listed for hearing.  On the previous day the mother had filed an Application in a Case and affidavit making the serious allegations that he had sexually assaulted the child.  The father emphatically denied at all times that there is any substance to those allegations.  Orders were made on 15 September 2016 with the consent of the parties suspending the father’s time with the child and the proceedings were transferred to this court to be placed in the Magellan List. 

13. An ADVO was made by police on a provisional basis on 27 September 2016 for the protection of the child against the father, but the father was not charged in relation to the matter. The provisional ADVO was continued by a Local Court as an interim order on two occasions before being listed for hearing on 6 December 2016 when a final ADVO was made. 

14. Under cross-examination the mother agreed that she told the child as an explanation for the father’s absence that the court had said he couldn’t see her. The mother remained firm under cross-examination that she believed when the child made the complaint that the father was a paedophile who had sexually abused her daughter.

15. The tenor of the mother’s cross-examination was that she did not want the child to feel that her father was abandoning the relationship and in this context she told the child that the court had made the decision about not seeing him. When asked about the conditions contained within the ADVO the mother said she did not think at the time of telling police that she wanted to maintain the child’s relationship with the father and seek only that he be restrained from being alone with the child. She maintained at the time that she did not know that she had any input as to the terms of the orders made for the protection of the child.

16. Under cross-examination it came to light that the mother first took the child to see a specialist paediatrician in respect of behavioural concerns in late September 2016, a couple of weeks after the disclosures.  She agreed that the disclosure would have been foremost on her mind but could not recall whether she mentioned the matter to the paediatrician.  When shown a report prepared by the paediatrician and sent to the medical centre attended by the child (which did not contain any reference at all to the sexual abuse) the mother could only concede that the matter was not mentioned “exactly” and added that she was instructed not to talk to the child about it.  She denied that she deliberately did not tell the paediatrician about the sexual abuse allegation because she did not believe it at the time. 

17. Under cross-examination the mother agreed that after the child made her allegations she took her to sexual assault counselling at a sexual assault service.

18. The mother deposes that after the ADVO was dismissed (it was in fact revoked by the District Court on 26 April 2017) she discussed with the child the prospect of seeing her father again but says that the child was very adamant that she did not want to see him. The mother agreed that she did not tell the child that she would be content for her to see the father because that is not how she felt. The mother reiterated that she did not feel that the child was safe to see her father at that stage.

19. The mother deposes that after the child was informed in about May 2017 that she would soon need to see her father for the purposes of the expert report the child began having nightmares and exhibited anxious and regressive behaviours and also reported chest pain.

20. In his report the expert recorded that when spoken to alone at first the child spoke of the father in positive terms. When asked if there were any problems with the father she stated “I feel good with dad, only rarely” and denied her father had upset her. The expert then records the following:

    I asked if anyone had touched her in a bad way.  She then explained what she understood was the purpose of this interview, “The whole reason we’re here is that dad tickled my wee wee.”

21. Under cross-examination the mother conceded that she explained to the child that the reason that they were being interviewed by the expert was because of the child’s disclosure.

22. The expert records the following about questions he asked  the child during the assessment about the incident in which the father had “tickled the wee wee”:

    She said, “It was a long time ago.”  I asked if she remembered what happened.  She said, “I’m not sure.  I’m not really.”  I asked how this happened.  She didn’t answer the question.  I then asked, “How bad was it?”  She said, “Medium bad.”  I asked what was the worst thing about the tickling was.  Her response was, “Him doing it.  Mum thought it was bad.  I want to forget it.  I want it to go away.” 

23. The child’s sexual abuse counselling had at this stage occurred weekly for many months. In cross-examination when asked why the counselling continued for such a long time, the mother responded “because she was not talking about it”. The mother conceded that the counselling may have had a detrimental effect on the child by either reinforcing a false belief that the child held or if she was a victim of sexual assault and had forgotten about it reviving this memory.

24. In October 2017 orders were made restraining the parties from allowing the child to be involved with sexual assault counselling. The mother ceased the child’s counselling with the sexual assault service. However, she engaged the child with a “psychotherapist” (“the child’s therapist”) from this time and this counselling was ongoing at the time of the final hearing.  It came to light in documents produced on subpoena by the child’s therapist that therapy was provided to the child on the basis that she had been the victim of sexual abuse.

25. The mother agreed under cross-examination that she was aware of the court order that there be no further sexual abuse counselling for the child and maintained that she had not engaged in counselling of this type. She denied arranging counselling of this type by ensuring that the counsellor did not use the words “sexual abuse counselling”.

26. Under cross-examination, the mother denied that she regarded therapy with the therapist as a substitute for sexual assault counselling. The mother was also shown under cross-examination a document dated 30 August 2018 written by the child’s therapist and contained documents produced by the therapist on subpoena. In that document the child’s therapist wrote: “My current belief, based upon experiences with [the child], attachment theories and Family Therapy, is that due to the trauma [the child] has experienced in her young life, from her disclosure, inappropriate sexual ‘games’, institutional trauma from her experiences within the Family Court and legal system, that the age bracket [for treatment] will extend beyond nine years of age.” The mother agreed that she provided information to the child’s therapist at the first meeting about the child’s experiences to date.

27. The mother maintained a belief that as a result of sexual abuse the child suffered trauma and the tenor of her evidence was that the counselling with the therapist addressed the trauma responses. 

28. It was put to the mother under cross-examination that she utilised the disclosure made by the child to stop the father’s time in circumstances in which she knew the father was seeking overnight time, that police had not acted on her claims about his conduct and matters of concern about her own parenting had been raised by the family consultant. The mother denied that she had done this and denied that she had disbelieved that the child’s complaint constituted a risk of sexual abuse. The mother said that it had not occurred to her that the child would have known that she [the mother] had misinterpreted the child’s complaint and that the child was playing a game with her which ended up involving police and that this was the cause of the child’s concern about the matter. The mother said that on reflection that may have occurred.

Discussion and findings

1. In dealing with the second of the two issues referred to in Deiter (supra), it is beyond dispute that if the harmful events were to occur that is, if the child were to be sexually abused by her father, the severity of the impact is of the highest order. The harms associated with children being the victims of child sexual assault are beyond doubt.

2. The real question for me to resolve relates to the first of the matters raised in Deiter (supra), the likelihood of the harmful events occurring. For the reasons given earlier this involves factual findings as to whether the abuse occurred in the past.

3. Further for the reasons given I am required to make findings with respect to family violence.

4. I am not satisfied to the requisite standard that the father engaged in conduct that falls within the definition of family violence[8] or that he physically or sexually abused the child for the following reasons.

   [8] Section 4AB(1) … Family Violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful

5. The mother’s allegations of family violence consist of the father physically assaulting her by squeezing her hard on the arms and legs causing bruising, threatening to harm her and engaging in behaviour that controlled her or caused her to be fearful. Her allegations of critical and derogatory remarks and the specific examples of them do not fall within the definition of family violence in the Act.

6. In determining whether the father perpetrated physical violence and made threats of violence as alleged, I first attach weight to the fact that the mother told the family consultant when first interviewed in August 2016 that the father had never been physically violent towards her (or for that matter the child). She also did not make complaint to the expert when interviewed in June 2017 about the father’s physical violence. Further although it is not necessary for a victim of family violence to make complaint to police or seek medical advice,[9] the mother’s failure to do so in respect of the events in which she says she was injured is also given some weight in assessing whether these events occurred.

   [9] Amador & Amador [2009] FamCAFC 196 (2009) 43 Fam LR 268

7. In relation to physical abuse the mother provides nothing more specific than that the father “often” squeezed her hard on the arms and legs and even this general allegation was not pursued by the mother’s counsel in cross-examination.

8. The evidence of alleged controlling conduct is also extremely general and no specific examples are given other than that on one occasion the father is alleged to have told the maternal grandmother not to come to the home again. The mother does not allege that as a result her relationship with her mother was damaged. So far as the document containing written conditions is concerned I accept the father’s evidence that the document was produced by him in the context of the parties’ relationship breaking down and that he also suggested to the mother that she produce a similar document in relation to his conduct. Although the tone of the document could be interpreted as having a coercive or controlling effect the mother does not suggest that she was in fact coerced or controlled in any particular manner by the conditions as to her conduct contained within it.

9. Further, the mother confirmed a number of times under cross-examination that she did not have any particular fears about the father’s conduct arising from family violence until March 2014 when she claims that the father threatened in a phone call that he would have the child in an equal shared time arrangement which caused her to become fearful.

10. The mother also made it clear under cross-examination that she was not frightened of the father as the result of his alleged violent past in other contexts, association with criminals and being involved in arranging for a person to be harmed or engaging in extortion. Further, although the mother claims that the father was charged with respect to some of his conduct there is no evidence to support this claim and the father denies ever being charged with a criminal offence.

11. I do not make any positive findings about any of the last-mentioned matters or the more outlandish claims such as that the father had murdered and stabbed people in the past. Apart from the inherent unlikelihood of those more serious matters it may be expected that such matters if true would have been fully investigated when the father’s (successful) claim for asylum was made in Country D and when he subsequently moved to Australia.  

12. In any event the mother also agreed that she had known about all these matters relating to the father’s conduct when she entered into a parenting plan in May 2015 which provided for the father to spend time with the child twice a week. Agreeing to such contact is completely inconsistent behaviour on behalf of the mother who in all other respects presents as particularly protective and vigilant to guard her child against harm.

13. I am also not satisfied that the father physically abused the child by slapping her on the face in August 2015. I find it inconceivable given the mother’s protectiveness that she did not raise the child’s complaint with the father or Community Services at the time especially as she says she observed some colouring to the child’s cheek. The mother also claims that she telephoned police in relation to this matter for advice but there is no police record to support this claim.

14. The mother also told the family consultant only a few days prior to this alleged event that the father had never been physically violent towards her or the child. It seems highly unlikely in my view that within days of being aware that the mother had not alleged that he was physically violent towards the child that the father would act in this manner. It is in my view also significant and somewhat prescient that the family consultant expressed concerns that the conflictual manner in which the parties interacted would lead to an escalation in allegations and counter allegations.

15. Finally, while it may not be unusual for a victim of family violence not to seek medical attention following such incidents it is in my view highly unlikely that the mother would fail to do so for her child, especially as she observed a slight injury as a result of the alleged assault.

16. In relation to the alleged sexual abuse I am not satisfied to the requisite standard that it occurred as alleged for the following reasons.

17. The allegation of sexual abuse at its highest was made by the child in the course of her JIRT interview when she described her father “tickling her wee wee” when she was naked and that it involved the father attempting to penetrate her or in her words “trying to put his fingers in my wee wee”.

18. In my view little weight should be attached to these statements made in the course of the JIRT interview due to many concerning features about the interview process and interference with the integrity of the interview process.

19. So far as the latter is concerned there are a number of features of the mother’s evidence that in my view give rise to an inference that she may have tainted the child’s memory and account of the event.

20. First, according to the mother’s affidavit account her immediate response to the child’s statement was to inform the child that she needed to tell her teacher. Shortly thereafter the mother told the child that she “had to tell the police” and later while waiting for the police to arrive reiterated “we need to tell someone.” It is to be remembered that at this stage the child had only reported in a context which the mother agreed was playful that the father had “tickled her wee wee”.

21. I also note and attach some weight to inconsistencies in the mother’s accounts of the context in which the initial conversation occurred. In her affidavit she deposes that it occurred when she was changing the child’s clothing for the day whereas the contact record from Community Services[10] records the mother’s complaint to police to be that “something must be going on” because “[the child] dresses and toilets herself”.

    [10] Exhibit 13 – entry marked M14.1

22. There are also some inconsistencies between the mother’s affidavit account and other evidence concerning further questions she asked of the child during the time that they were waiting for police to arrive. These inconsistencies which are relevant to the reliability of the mother’s evidence about the child’s disclosure also relate to tainting by the mother of the child’s subsequent interview with JIRT. For example, in the contact record of Community Services (which came via police as previously noted) it is recorded that in the initial conversation after the child asked the mother to “tickle her wee wee” and the mother answered “no, why would I?” and also asked the child whether the father “does it with your undies on?” to which the child responded “yes”. This conversation in my view is both consistent with a more benign tickling and consistent with some matters later reported by the child to JIRT. Its absence in the mother’s affidavit is in my view significant. It may be inferred that the mother is seeking to distance herself from any knowledge that she had at the time which indicates that the tickling was not as sinister as she sought to portray.

23. Two days after the first conversation about the tickling the mother deposes to taking the child to a doctor as she had a fever and that while at the medical appointment the mother told the doctor about the child’s conversation with her at the request of the child. The mother deposes that the child made a similar disclosure to the doctor and the doctor asked further questions about the disclosure but no evidence is adduced from the medical centre about this appointment or alleged disclosure. Further, there is no record from Community Services indicating a report at around this time. As a doctor is a mandatory reporter, the absence of such a record casts doubt on the accuracy of the mother’s evidence in this regard.

24. In summary by the time the child was interviewed by JIRT on 11 September 2016 the mother had conveyed to the child that her comments to her were sufficiently serious that they should be reported to a teacher, to police and a doctor. The mother and doctor had also engaged in a number of conversations with the child between them about details of the alleged incident. In my view the child must have gained the impression that her reporting of the father tickling her wee wee was a serious matter that her mother and various authorities were concerned about.

25. One of the other concerns about the JIRT interview relates to its length given the child’s age. The interview comprised 391 questions and took place over 65 minutes without a break.

26. A further concern arises from the extent to which the officers pressed the child, and asked the child leading questions. Although the child told the JIRT officers early in the interview that she didn’t know much more than that her daddy tickles her wee wee, and didn’t know when he did this she was pressed about “the last time that it happened”. The child had at this stage not suggested that the father had engaged in this activity on more than one occasion and it is the JIRT officer who introduces the idea of “the last time” and the suggestion that it had happened on more than one occasion.  The child then indicated that it had happened “last Saturday, maybe a few Saturdays ago”.

27. Further, although the child had only ever referred to her father “tickling” her the JIRT officer also introduced the idea that the father had “touched you on your wee wee” and asked the child to tell him “everything from start to finish about that time that [the father] touched you”. Even though the child once again indicated that she had little information to provide saying “I don’t really know much I just know he did this a few Saturdays ago” the child was again pressed for detail including through some very leading questions. For example, when the child was asked about the last time she had seen her father and she indicated that they ate lunch at a particular restaurant the officer asked the following question “Okay. Now the time that he touched you on your wee wee was that before or after you went to lunch at [the restaurant]”. It was the officer who first introduced the suggestion that the father had tickled the child on the last occasion the child spent time with him. Later in the interview the officer again came back to the last occasion on which the child had seen her father and asked her to tell him what happened. The following questions and answers were recorded:

    A: mmm, well, he was getting me changed.

    Q: Yeah

    A: and um, while I was naked he tickled my wee wee

    Later the child clarified that the father was taking her stockings off at the time because she got too hot.  The child then said that the father took off her tights but not any other clothes.

28. After much more extensive questioning the child was asked to describe how the father “touched” her. The child persistently responded by making reference to the father “tickling” her and the officer persistently framed questions in the terms of “touching your wee wee”.

29. After extensive pressing questions and when asked specifically what the father was doing with his fingers the child responded “mmm he was trying to um, put his fingers like, in there, in my wee wee” but could not explain how he was doing this. In answer to some later questions the child said that the father tickled her on top of her underwear (Q and A 261) and at one stage (Q and A 370) the child said “well, the thing is he didn’t tickle me, my wee wee I talked to [the school counsellor] before he tickled my wee wee”.

30. In my view the pressing nature of the questions may not only have been oppressive but appear to have caused confusion for the child. She certainly gave some inconsistent answers, saying, for example, that the tickling occurred when she was naked and later that the father tickled her on top of her underwear.

31. The child’s version of events is also at times inconsistent with the mother’s evidence. For example, the child told the investigators in the interview that she told her mother about the father’s tickling when she and the mother were in the lounge room about to start a game of Monopoly. She also quite firmly stated that she reported the tickling the same day it had happened and denied saying that he had “done it about four times”.

32. The next question to be considered is whether the opinion of JIRT that the complaint was “substantiated” should attract any weight in my determination. In my view it should not. First, I have concerns about the reliability of the account given in the formal interview for the foregoing reasons. Further, in substantiating the complaint it appears that weight was also given by JIRT to comments made by the child in the course of a discussion after the formal interview. In particular, weight appears to have been attached to the child’s strong reports of disliking the father. No transcript of this conversation has been produced in the proceedings though it is recorded in a summary within the JIRT documents produced on the subpoena that these statements arose in the context of exploring likes and dislikes of the child’s parents and the child reporting that she disliked “everything” about her father. However when asked to specify what she disliked the child said that the father won’t let her have sugar and that when he shouts at her when they go to the park. Further, when the matter was explored in further conversation the child identified the activities she liked doing with her father.

33. In summary I have many concerns about the JIRT interview including that it is likely that the child was influenced in advance of it by the mother. It was lengthy and involved the questioner asking leading questions, effectively cross-examining the child and introducing some of the key ‘disclosures’ such as that the father “touched” the child. As also noted at times the child seemed quite confused and on other occasions she gave internally inconsistent answers. Further, although the child said on numerous occasions that she didn’t know anything more about the matter when she was pressed she was able to give further detailed answers. This gives rise to a concern that the child may have been providing details as that was what she felt she was expected to do.

34. In my view little weight can be attached to the comments made to the child at the end of a lengthy interview process particularly given the content of the child’s complaints about the father and also as she identified activities she liked doing with him despite stating that she disliked “everything” about him.

35. In my view the mother’s evidence in relation to her initial conversation with the child should be given very little weight in support of the allegation that the father sexually abused the child. As noted earlier there are inconsistencies in the mother’s account about the context in which the conversation began but she confirmed under cross-examination that she regarded herself and the child as being in a playful mood when the words were spoken. I accept the submission of the mother’s counsel that the clear inference is that the child was in a playful mood and was asking her mother to tickle her.

36. In my view a particularly significant matter in determining whether the allegation of sexual abuse is proved is the timing of the alleged disclosure of the child which gave risk to the subsequent investigation. There is no dispute between the parties that the father’s application for interim orders to spend time with the child including overnight time was before a judge of the Federal Circuit Court on 29 April 2016. On that date the parties were ordered to attend upon a family consultant for the purpose of a Child Dispute Conference and the hearing in relation to the interim application was fixed for 15 September 2016.

37. On 11 August 2016 the parties participated in a Child Dispute Conference with a family consultant and a Memorandum was released the following day. In that Memorandum it is recorded that “the mother had raised a range of issues of concern about the father’s conduct including violence, association with criminals and drug and alcohol use and that he had threatened to remove the child from the mother’s care.” Although the mother complained to the family consultant that the father associated with a paedophile she did not make any allegations of sexual abuse. Of significance in my view is that the matters raised by the mother have always been put forward (regardless of their content) in support of orders that the child only spend daylight hours with the father. The mother was in August 2016 firmly opposed to the child spending overnight time with the father.

38. It is recorded in the Memorandum that the father raised a number of issues of concern about the mother’s parenting including that she had breastfed the child until the age of six, that the child was still sleeping with the mother and that the mother was a hoarder.

39. The mother was also certainly well aware that on 15 September 2016 an interim hearing was to be conducted in relation to the father’s application to spend time with the child including overnight time.

40. Against this background it is of significance in my view that when the mother notified police of the child’s disclosure (which was passed on to Community Services and included in the record of “reported information”) she informed them that the child “has regular access with the father every Saturday (no overnights)” that there are no family law court orders currently in place and “court proceedings are on 15/9/16”. Further, in her statement to police on 12 September 2016 the mother refers to being unhappy with the then current arrangements for the child’s time with the father contained in the parenting plan.

1. In my view it is highly unlikely that the father would engage in inappropriate sexual conduct towards the child at the very time that the mother had heightened concern about the prospect of his increased time with the child including overnight time and when a hearing around these issues was fixed to occur within weeks.

2. Some of the mother’s conduct after the child had been interviewed by police and the orders in relation to the child’s time with the father had been suspended is also in my view inconsistent with her holding a genuine belief that the father had sexually abused the child or there was a real risk that that had occurred. In particular I take into account the mother’s conduct when she took the child to see a specialist paediatrician in respect of behavioural concerns only weeks after the disclosure and when she agreed that the alleged sexual abuse would have been foremost on her mind. There is no evidence to support that she informed the paediatrician of the alleged sexual abuse. I accept the submission made by the father’s counsel that her failure to do so was because she did not genuinely believe that the father had sexually abused the child. At that stage the mother no longer needed to be ‘driving’ the allegation in order to have the child’s time with the father stopped as other authorities and in particular JIRT had found the abuse substantiated and had ensured that this occur.

3. In determining whether the alleged abuse occurred I also attach some weight to the father’s denial of any allegation of sexual abuse. I also accept his evidence that the child did not at that stage require that assistance with dressing as it is consistent with the mother’s reports to police at the time that the child did not require assistance in dressing at that time. On this basis he contends that the child’s allegation that the abuse occurred when he was dressing her is unreliable.

4. Further, I attach some weight to the fact that the ADVO which was initially made for the protection of the child against the father was subsequently revoked by the District Court albeit that I have no further information in relation to the revocation.

5. I am also satisfied on the basis of the expert’s evidence that by June 2017 the child had no recollection about the incident in which the father “tickled her wee wee” though she was aware that her mother “thought it was bad” and that she simply wanted the whole issue to go away. I accept the expert’s opinion that the child showed no signs of having been traumatised.

6. In summary I have regard and attach weight as given to all of the foregoing matters. The child’s initial “disclosures” amounted to no more than a report of playful conduct by the father, her recollection and account of the incident was tainted prior to her interview with JIRT, and her statements made to JIRT are unreliable. The circumstances in which the complaints arose and their timing affects their reliability. The father denies the conduct alleged, a judge of the District Court revoked the ADVO and the child showed no signs of trauma when interviewed by the expert. In all of these circumstances I am not satisfied that the father engaged in any sexually inappropriate or abusive conduct towards the child as alleged.

7. For the same reasons, I am satisfied that the mother seized upon a comment made by the child in a playful context and used it in a manner that enabled her to appear protective of the child while ensuring that there was no prospect of the child’s time with her father being increased. This occurred in circumstances where the father was seeking that increase in time including overnight time to which the mother was firmly opposed.

8. I am also of the view that the father does not pose an unacceptable risk of harm to the child on the basis that he may sexually abuse her in the future. While my findings do not go so far as being satisfied that the father did not abuse the child there is no other evidence upon which the mother relies to suggest that there is any risk that he may do so in the future, other than some remarks about the father’s use of the word ‘sexy’ which she considers concerning, which I consider of marginal relevance to the issue.

9. The mother’s inconsistent concerns that the father had engaged in grooming the child for sexual abuse, had sexually abused the child or a combination of the two were confusing and unclear and must be assessed in the unfortunate context of the mother having been a victim of childhood sexual abuse herself. Although these matters may give rise to a concern in the mother’s mind as to risk posed by the father I do not consider that he poses an unacceptable risk of harm on this basis.

Expert evidence

1. The expert, a specialist child, family and adult psychiatrist interviewed the family in August 2017 for the purposes of his report. The assessment included an interview with each of the parents separately, the child separately from the parents, each of the parents with the child and also the parents together. In writing his report the expert examined previous court orders, the Magellan Report, the Child Dispute Conference Memorandum, the parties’ affidavits, the Initiating Application and Response and the Notice of Risk filed by both parties in the proceedings.

2. The expert was of the view that it was highly unlikely that the father had sexually abused the child and was not of the view that the father poses an unacceptable risk to the child. Overall, although the expert had some concerns about the mother’s dependent personality disorder he recommended that the child continue to live with the mother and that contact with the father which was not at that time occurring recommence. He did not believe that supervision of the father’s time was necessary but felt that a transition which involved some supervision was more likely to make it more manageable for the mother and therefore successful. The expert also said that he would like to be able to suggest that at some point overnight contact with the father could be established but was concerned about the mother’s anxiety which he thought likely to trigger the mother to question the child and initiate further allegations which would be a major problem for the child. He therefore felt it was much safer for daytime contact only to continue and that if overnight contact were to be introduced that could occur potentially after the child is ten years of age.

3. The expert also recommended that both parents do post-separation counselling, that both parents have some individual counselling and that the sexual abuse counselling in which the child was then engaged cease.  It was his view that the mother who he believed has a personality disorder would benefit from significant intervention to enable her to develop better life skills and emotional regulation as well as some intensive parenting assistance to provide her with a healthy perspective on parenting so that she reduces the impact on the child of her own emotional needs.

4. Finally, as the expert was concerned about the mother’s pursuit of allegations which he regarded as spurious he opined that if this were to occur again then he would consider the possibility of a change of residence. 

5. The expert was cross-examined by counsel for each of the parties and the ICL.

6. The expert was first asked about the paediatric opinion that the child fulfilled the criteria for diagnoses of Asperger’s Syndrome and Attention Deficit Hyperactivity Disorder (“ADHD”) as well as a clinically significant anxiety disorder. The expert said that he had observed in the child signs of generalised anxiety which was a feature of her relationship with the mother. The expert described this anxiety as “a circular anxiety issue” where the mother and child each have anxiety which “they feed into each other”.

7. When asked about the diagnosis of Asperger’s Syndrome or Autism, the expert explained that “Asperger’s would be classified as mild autism”. The child had been diagnosed with this in October 2016 but the mother had not brought this matter to the expert’s attention. The expert said that he did not notice any features of mild autism in the child during his interview but observed that children with mild forms of autism “may not be so obvious clinically”. The expert said that children who have anxiety or mild autism do not necessarily need any therapeutic intervention. He also added that high functioning autism and some anxiety is not uncommon in children. With respect to the mother’s concerns about the child’s needs in this regard the expert opined the following:

   I was certainly a little concerned that perhaps the mother was looking for conditions that are care eliciting that might be part of her dependency issue where health issues are one of those areas where you can elicit care and get support.  And I guess that’s where I had some concerns for the mother because I see her as having significant emotional needs and that some of those emotional needs are being met through the child and through perhaps the child having conditions that need to be treated. The expert said that he did not think that the child’s autism spectrum disorder diagnosis had any significant impact on her relationship with her father.

8. The expert was asked about the opinion of the child’s therapist [whose qualifications and expertise is unknown] who had engaged with the child between October 2017 and the time of the final hearing. This therapist expressed the view in a ‘clinical report’ dated 30 August 2018 and contained within her documents produced on subpoena that the child had experienced trauma “from her disclosure, inappropriate sexual games, [and] institutional trauma from her experiences within the Family Court legal system”. The expert did not find the child’s presentation as consistent with a child who had experienced trauma. He formed the impression that the child was upset about the whole issue related to “tickling” and wanted it somehow resolved.

9. From statements by the child’s therapist contained in documents shown to the expert he opined that all of the therapist’s work with the child is based on a presumption that she has been traumatised through sexual assault. The expert opined that as children are very suggestible and impressionable if a child spends a lot of time with an adult who is working in a way that suggests that she’s been traumatised or experienced sexual abuse that she has not experienced then the child may internalise this suggestion and believe she has been damaged which can be harmful to the child.

10. The expert was then questioned about some of the recommendations he made in light of the evidence given by the mother in the proceedings.

11. The expert initially remained of the view that he would be very cautious about recommending an introduction of overnight time with the father due to the likelihood that it might lead to further allegations because of the mother’s anxiety levels. He said:

    And so my concern is that the mother’s anxiety may be so great that if there is overnight contact then she will be able – she will not be able to contain her anxiety and that she will question the child and – and lead potentially to conditioning the child to responding to her anxieties and run the risk of further allegations being made against the father.

12. The expert was concerned that the mother’s anxiety level appeared to have had increased over time.  When he assessed the mother in mid-2017 it seemed to the expert she was concerned about the potential for sexual abuse rather than sexual abuse having occurred but it seemed to the expert that at the time of the hearing she was concerned that both sexual abuse and grooming had occurred. The expert was also concerned that the mother maintained that the child’s therapist was not engaging in sexual assault counselling when he felt it was clear from the therapist’s reports that there was “a presumption that there was trauma and sexual assault and that’s what the counselling was aimed at”.  He also expressed concern about the fact that the mother had been present during the counselling and sometimes the child wanted the mother to speak for her.  The expert felt this raised concern that the mother wasn’t confident to separate from the child and couldn’t allow the child to have appropriate support and therapy.

13. The expert remained firm under cross-examination that the mother had “significant dependent features to her personality” that she was “overly reliant on [the child] emotionally” and that if she did not allow the child to develop and grow normally herself and put too much pressure on her then the child would become overburdened by the mother’s needs.

14. The expert agreed that his recommendation that the child miss out on overnight time with her father until at least the age of 10 would be an order that prioritises the mother’s needs over the child’s needs and that he was considering “the least detrimental alternative”. The expert concluded in this regard however:

    … if your honour believed that the mother could cope with overnight and that she would perhaps get enough help to not question the child and not scrutinise the child’s time with the father such that it led to the potential of further allegations, then it would be much better for the child to have that time with the father.

15. The expert agreed that it was up to the mother to demonstrate that she could cope with the child having overnight time with the father as otherwise the court would be structuring orders that are in the mother’s best interest rather than the child’s. He also agreed that the mother has had this opportunity since the report was released (in August 2017).

16. The expert agreed that the mother’s questioning of the child, raising allegations and taking the child to an inappropriate person for sexual abuse type counselling could be wilfulness on her part rather than incapacity or inability to cope with her anxiety.  If this were the case he then agreed it would be quite wrong to limit the child’s time with the father on that basis. When asked whether he thought it was an issue of unwillingness or incapacity the expert said:

    “I think it’s a mixture of both, your honour. I do have concerns about the mother’s personality style and her anxiety levels herself. She has had anxiety and depression much of her life. She does seem to have struggled in some of her areas but she does also have some strengths but I think her main fear is losing the child and if she – I think if she knew that she wasn’t going to lose the child then she probably could cope. Just because someone has a personality difficulty doesn’t mean you can’t cope and parent to an adequate extent. It depends on the degree. But it does seem to be a mixture here. I mean to wilfully go against the court orders and get inappropriate counselling is – it does appear that she is intentionally trying to manipulate the child.

17. The expert was asked about his recommendations about overnight time if the court were to find that it was an unwillingness or opposition of the mother to allowing that time rather than true anxiety.  If this were found the expert agreed that overnight time with the father could commence immediately.

18. The expert was asked about the father’s evidence to the effect that all he wants is a relationship with the child and does not want to remove the child from the mother’s care because it would be very traumatic for both of them.  The expert opined that this shows good insight on the father’s part. The expert also agreed that it was quite unusual for a person in the position of the father not to take great umbrage at the allegations given their serious nature and to continue to have some goodwill towards the mother. The expert said he found the father to be a very impressive individual and that he had great insight into these complex issues and ability to deal with them and “understood what he needed to do to be able to try and act in the best interests of [the child]”.

19. The expert maintained his recommendations that the mother undergo “acceptance and commitment therapy” and/ or “dialectical therapy” which would assist in the mother learning to manage her anxiety and emotional disturbance. He said that the flow on benefit to the child would be if the mother learned to manage her emotions “it would prevent the child from being put through… significant ordeals which might … flow from the mother’s extreme emotions”.

20. There was very little challenge to the expert’s report through cross-examination. In particular there was no challenge to the factual basis of the expert’s opinion upon which his conclusions about each of the parents and child and recommendations for the future were based.

21. The cross-examination of the expert consisted mainly of expanding on additional matters which had not been contained in his report as summarised in the forgoing passages.

22. The cross-examination of the expert by the mother’s counsel took six minutes and virtually all the questions concerned the engagement of the child’s therapist. It was also put by the mother’s counsel that the expert had misunderstood the mother’s concerns when the child first reported the incident of the father tickling her. The expert conceded that it was possible that he had misinterpreted the mother’s statements about whether or not she believed sexual abuse had occurred but maintained that the mother said quite clearly to him that her main concern was grooming.

23. As there was such little challenge to the expert’s evidence and having regard to his qualifications as a specialist child, family and adult psychiatrist together with his over 25 years’ experience working in clinical and forensic capacities and extensive experience preparing reports for civil matters including for the Family Court I accept his evidence and attach significant weight to it.

Proposals of each of the parties

1. The father proposed that until the commencement of the school term in 2019 [which has now passed] the child spend time with him each alternate weekend from 9am Saturday until 5pm Sunday, each Wednesday afternoon from after school or 3pm until 7pm, for four hours on Christmas Day and for a week in the Christmas school holidays.  He then proposes that from the commencement of Term 1 2019 the child spend time with him each alternate weekend and after school each Wednesday in the same pattern and for one half of each of the school holidays.  He also proposes that the parties equally share parental responsibility for the child. 

2. It is the father’s case that this is an appropriate matter for the presumption of equal shared parental responsibility to be applied.  It is his position that there is no unacceptable risk to the child on any basis in his care and that the orders he proposes will best foster the child having a meaningful relationship with both parents.

3. The father proposes that changeovers other than at school continue to occur at a local library except in the case of a Wednesday evening when they are to occur at a location as agreed between the parties.

4. The mother seeks orders that she have sole parental responsibility for the child and that the child spend time with the father each Saturday for eight hours, on New Year and Father’s Day for eight hours and at all other times as agreed in writing between the parties. 

5. It is the mother’s case that the presumption of equal shared parental responsibility for the child is rebutted and that it is in the child’s best interests not to spend overnight time with the father.  According to final submissions made on her behalf the central question to answer with respect to the child spending overnight time in the care of the father is whether such an order places the child at an unacceptable risk of harm from sexual abuse.  It is clearly stated in the submissions that the mother does not resile from her position that the child is not safe with the father overnight.

6. The mother proposes that changeovers other than at school are to be as agreed between the parties.

1. The ICL’s proposal is very similar to that of the father except that the ICL proposes that the Wednesday evening time cease at 6pm.  The ICL proposes a more gradual increase in school holiday time commencing with two overnights on a Saturday and Sunday and a day on the first Wednesday. This would then gradually increase throughout 2019 and reach a pattern of equal time in the holidays from the school holidays at the end of term one in 2020.  The ICL also proposes specific time during the Christmas period and that changeover occur at the local library other than when it occurs at school unless otherwise agreed between the parties in writing.  The ICL supports the father’s proposition that an order be made for equal shared parental responsibility for the child.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:-

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

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

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

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

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

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

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

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

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

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

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) are:-

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

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

2. I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.

3. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[11] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[12] and has also agreed with the reasoning of Bennett J in G & C[13]. 

   [11] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [12] (2007) Fam LR 518

   [13] [2006] FamCA 994

4. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

5. The Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

6. The Full Court in McCall & Clark (supra) continued at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

7. Each of the suite of orders proposed by the parties (and ICL) recognise that the child benefits from having a meaningful relationships with both parents and each proposal fosters that relationship.

8. It is curious that despite the mother proposing orders that the child have regular time with the father, she expressed the view a number of times under cross-examination that the child does not benefit from having a meaningful relationship with him and that he poses a significant risk of harm to her on various bases.  For example under cross-examination the mother said this of her attitude towards the father’s time with the child:

   Question: You have portrayed the father, throughout these proceedings – not just the last couple of days but right back to the Child Inclusive Memorandum – as someone who, at minimum, is a murderer, a person who consorts with criminals, a person who is a drug-dealer, a person who is an extortionist, a person who sexually assaulted your daughter and a person who has the propensity in the future to sexually assault your daughter.  In those circumstances, why is it that the Minute you seek now, as of this moment, is that the father spend time with the child?  

   Answer: Because I have been led to believe from day one that if I did not allow some access, that she would be taken completely and he would have her completely, thus putting her in greater harms’ way.  This was the barest minimum that I could safely keep her from such exposure.

9. The mother maintained under cross-examination that she currently believed that the father has sexually abused the child by touching her on the vulva and pubic area and tickling her.  She also said that she believed the father poses a risk of sexual abuse to the child in the future and possibly a risk of physical abuse.  The mother said she had held these concerns since March 2014 and agreed that nothing she had read, heard or seen or in the evidence of the expert persuades her otherwise and that she still maintains that the father poses a risk to the child in the future.

10. The mother continued under cross-examination in an inconsistent manner vacillating between expressing support for the child spending time with the father and expressing concern about the various risks he posed to her.  The mother was evasive in stating her true current position but ultimately conceded that she believes that the child has complained to her that the father has sexually abused her and that complaint is true and for this reason “she needs to be kept away from her father”. This is completely contrary to the orders she promotes.

11. Although the child could enjoy a significant relationship with her father under the mother’s proposal, that is during daylight hours, the Objects of Part VII of the Act speak of ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.

12. The clear evidence of the expert which I accept is that it would be better for the child to spend overnight time with the father as he proposes so long as I am satisfied that the mother could cope with such a level of time and that her anxiety in relation to such an arrangement would not have a detrimental effect on the child. For reasons to which I will return I am satisfied that the mother’s level of anxiety is not to such a degree that the child would be detrimentally impacted if the time with the father increases to include overnight time.

13. The mother’s case to the extent that she maintains that the child does not benefit from a meaningful relationship with her father due to the risk he poses is in my view not supported by the evidence and my findings. There is thus no basis upon which I could conclude that the child does not receive a benefit from a meaningful relationship with her father or that the relationship is only beneficial to her if limited as proposed by the mother.

14. For the reasons given previously when considering the allegations of abuse and future harm I am not satisfied that the child has been subjected to abuse, neglect or family violence in the father’s care or that there is any risk that this will occur in his care in the future.

15. I now turn to the need to protect the child from harm in the mother’s care. In some parts of his affidavit the father raises the physical circumstances of the mother’s house as suggestive of neglect that may give rise to a serious risk of harm and some of the mother’s parenting practices such as breastfeeding the child to the age of six as similarly concerning. However, he does not contend that the need to protect the child from harm associated with these matters is of such a magnitude that the child should live with him as the primary parent.

16. Although there are concerns in my view in relation to harm associated with some of the mother’s parenting practices to which I will return, the need to protect the child from harm (to the extent that it exists in the mother’s household) may be safeguarded by regular time with the father and the father playing a significant role in decision making in relation to the child.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the child and factors underlying those views

1. The child who was almost seven when interviewed expressed concern about spending overnight time with the father. Given the child’s age and other matters of influence I attach little weight to her views about the specific arrangement for her future parenting.

2. The matters of influence that concern me include the fact that the child has been in the primary care of her mother since separation and that the mother has believed from September 2016 that the child was sexually abused by the father. Further, the child was provided with therapy for at least two years (and that therapy was ongoing when she expressed her views) on the basis that she had been sexually abused and traumatised by that abuse. The child also told the expert that the purpose of his assessment related to her dad “tickling her wee wee”, that her mother thought this was bad and that she wanted to forget it.

3. I do attach weight to the general views expressed by the child about her parents. In a general sense she reaffirmed that she had no difficulties with her father and spoke of him in positive terms and the expert’s observations of the interactions between the two was consistent with this positive view.

Nature of the child’s relationship with each parent and other significant persons

1. There is no dispute that the child’s principal attachment relationship is with her mother and for this reason the parties agreed and an order was made to that effect at the completion of the hearing that the child continue to live with the mother in the future.

2. The expert opined that the child has a strong attachment with her mother but that it is an anxious one. When asked under cross-examination to explain what this means he said the following:

   “It means that she is overly anxious and worried about how she interacts and, I think, worries about being away from her attachment figure. Now that’s not necessarily pathological, and it’s something that, you know, children – there are various different styles of attachment that children exhibit…”

3. The expert opined that such an attachment style is “within the scope of normal as long as the child is able to continue to develop, separate and individuate in a normal way.” He explained that the mother has a very significant input in the process of the child separating and individuating so that the child may become an individual and able to develop a healthy range of relationships and tolerate and cope with being away from her. The expert opined that if the mother does not assist the child in this manner the following may occur:

   The likely outcomes are that her anxiety problems could escalate, that she could become extremely avoidant of going out and doing things. So in an extreme case, children who have overwhelming anxiety and develop into, like, a severe separation anxiety, then those children might have difficulty going to school and then become quite avoidant and then fail to have normal experiences to develop.

4. The expert was also of the view that the principal anxiety for the mother related to a fear that she may “lose the [principal care] of [the child]” and this is consistent with the mother’s evidence that her concerns about the child dated from the time that the father sought a much more significant role in her care. The expert opined that if the mother knew that this would not occur “then she probably could cope” with the child’s time with the father increasing including to overnight time.

5. The expert was of the view that the child was enmeshed with the mother and that “there was an excessive closeness and clinginess” in that relationship. Overall although he felt it encouraging that the child has been attending school regularly he maintained that the mother and child “will probably need some intervention for [the relationship] to continue to develop in a healthy way”.

6. The mother has not re-partnered and there is no evidence about the child’s relationships with her extended maternal family.

7. The expert is of the opinion that the child has a close relationship with the father and that there is no indication that she is frightened of him or reluctant to be with him. The expert is of the view that the relationship between the father and child is important and should continue.

8. In the course of the proceedings there was some suggestion that at one time the mother was involved together with the father’s former wife in promoting the relationships between the child and her half-siblings on the paternal side. These siblings have had some significant involvement with the child in the past. Their relationships with the child are also promoted (in my view more appropriately) through opportunities that arise during the father’s time with the child. In the event that the orders are made as sought by the father this will more likely promote the relationships with the extended paternal family including the half-siblings than if the father’s time were to continue to be limited as proposed by the mother.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. Although it appears common ground that each of the parents had involvement in the care of and decision making for the child prior to separation following separation the mother unilaterally assumed this role. It has always been the father’s case which in my view is most consistent with the evidence, that the mother has sought to limit his involvement in the child’s life by excluding him from decision making and spending time with the child. 

2. The mother’s conduct and attitude in this regard, which effectively denied the father the opportunity to participate in long-term decision making and spending time with the child increased following the child’s disclosure and the involvement of police and Community Services. Although I accept her evidence that she was unaware that she could have any input into the exact terms of the ADVO made for the child’s protection, once she became aware of the extent of it she took no steps to have the order varied so that the father could continue to be involved in the child’s life while the protection of the order also remained.

3. After the ADVO was revoked the mother continued to exclude the father from the child’s life to the maximum extent possible as she says she remained of the view that the father posed a risk of harm to the child and was not a capable parent.

4. After the expert report was released the father was diligent in seeking to have his time with the child increased. Although it appears that the mother only consented to orders permitting this to happen as she felt she had no choice, such orders were made and the child has been able to spend more time with the father. However, even though there was no order of sole parental responsibility, the mother acted as if such an order had been made. For example, she engaged the child with a therapist who continued providing therapy on the basis that the child had been sexually abused, even though there was an order prohibiting such therapy. The mother also unilaterally decided to delay the child’s commencement at school.

5. The father has at all relevant times paid child support and the mother supports the child while in her principal care. Although there were some complaints by the mother that a lack of finances prevented her from enrolling the child in co-curricular activities and there is some concern about isolation for the child and lack of enrichment from such activities the mother did not seek and nor did the father offer to fund such activities.

Likely effect of change in the child’s circumstances

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. In his report the expert had recommended that there be no consideration of overnight time between the child and the father until the child is ten due to the likelihood that it might lead to further allegations because of the mother’s anxiety. The tenor of his evidence was that the child could enjoy an adequate relationship with her father without overnight time. He did however remain firm that as the mother had significant dependent features to her personality and was overly reliant on the child emotionally if she did not allow the child to develop and put pressure on the child that the child would become overburdened by the mother’s needs.

2. The expert felt that so long as the mother could cope with overnight time then it would be much better for the child to have that time with the father. Increasing the child’s overnight time with the father in my view is likely to be beneficial for the child in that it will give her a more normalised relationship with him and her extended paternal family.

3. The expert’s evidence, which I accept, is that any diagnoses for the child such as that of ADHD or Autism spectrum Disorder are mild and do not raise any impediment to the child’s time with the father increasing.

4. The child’s only resistance to spending overnight time with her father, which she expressed in quite clear terms appeared to relate to a fear of upsetting her mother. So long as the change in arrangements is appropriately explained to the child (and orders to achieve this end were envisaged in cross-examination) then I am of the view that there will be no detrimental effect on the child and she will benefit from a change in her circumstances if orders to this effect are made. 

5. There are no practical difficulties or expense associated with either party’s proposed orders. 

Capacity of each parent to provide for the child’s needs

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. Each of the parents clearly loves the child and wants the best for her in the future.

2. Although it is the mother’s position that the father does not have the capacity to care for the child or meet any of her particular needs this was not explored in cross-examination of the expert. The central concern in the evidence and in the way the mother’s case was run related to the question of risk of abuse and in particular sexual abuse by the father.

3. For the reasons explored at length previously I am not of the view that the father poses any unacceptable risk of harm to the child.

4. In final submissions made on behalf of the mother the father’s agreement to orders that the child live with the mother are used to ground an inference relating to the father’s parenting capacity. The mother had deposed that the father previously made statements consistent with a concession that he would struggle to cope with the demands of a young child on his own; such as “I can’t handle living with anyone anymore” and “I have come to the realisation that I am a grumpy old man and can’t handle anyone messing with my things or moving anything”. On this basis it is contended on behalf of the mother that the father’s “failure to seek a live with order is a very convenient and self-serving approach.”

5. In my view the father should not be criticised for not seeking an order that the child live with him and it does not give rise to concerns about his parenting capacity.

6. The father has been persistent at all times in seeking an increase to the time that he spends with the child and to have an involvement in her life and at one point appeared to seek an order that the child live with him. However, this has not been his proposal for some time and I accept the opinion of the expert that in resiling from an order of this type and seeking to preserve the child’s primary relationship and stability by agreeing to orders that the child live with the mother, the father demonstrates insight and a capacity to prioritise the child’s needs above his own.

7. The father did raise a number of concerns about the mother’s capacity to meet the child’s needs. His affidavit contains many allegations about the mother’s hoarding and the physical state of her house which he describes in quite dramatic terms in relation to the dangers posed. I accept the submission of the mother and ICL that the level of harm appears to be somewhat exaggerated. In any event it is clear that the father cannot maintain that the conditions of the house are so dangerous and pose such a risk to the child that she should not remain in the mother’s primary care as he agreed to an order in these terms. I am satisfied that although there may be some concerns as to the state of the mother’s home that they are not overly significant in relation to the mother’s capacity.

8. The other principal concern raised by the father relates to the mother’s enmeshment with the child. This is consistent with evidence about the nature of the mother/child relationship which excluded others, the continuation of breastfeeding until the age of six (which brought with it physical concerns such as the child’s tooth decay) and the anxiety in the child related to this relationship. The expert was concerned that there were some difficulties along these lines in the mother’s parenting capacity and remained of the view that the mother requires some assistance in this regard as well as assistance for her psychological functioning.

9. The greatest concern about the mother’s capacity in relation to the application before me, (that is the father’s time with the child) was identified by the expert as the mother’s potential lack of capacity to cope with an increase in the father’s time. The expert reiterated however that it is a question for the court to determine whether the mother has such a capacity and whether some aspects of her approach to the child’s time are a manifestation of an unwillingness to support the child’s relationship with the father.

10. I am of the view that the mother does have the capacity to manage the introduction of overnight time and an increase in the father’s time with the child. First, the expert identified that the mother’s concerns primarily stemmed from a fear that she may lose primary care of the child. This matter is now settled by an order made with the consent of the father that the child remain living with the mother. Further, as recommended by the expert the mother has sought psychological support and an order may be made that she receive intervention of the particular type recommended by the expert. This is also not a case where there are allegations of non-compliance with orders that have already been made increasing the child’s time with the father from four to eight hours and removing the requirement that the time be supervised. Further, the child is now almost nine years of age which is one year short of the time at which the expert initially recommended that a review in her arrangements was to occur in any event.

11. Finally, I have some concerns that the mother’s conduct is more consistent with unwillingness on her behalf to promote the child’s relationship with the father than a manifestation only of her anxiety. For example, after having been restrained from engaging the child in sexual abuse counselling the mother informed the new child’s therapist that the child had been sexually abused and traumatised by the court process and the therapy with the child on this basis continued right up until the time of final hearing.

12. In the foregoing circumstances I am satisfied that the mother will be able to manage her anxiety in relation to the child’s time with her father.

13. Notwithstanding that the child has had in some respects a somewhat unusual lifestyle and has become somewhat enmeshed with her mother she has been able to maintain a warm relationship with her father. If that relationship is to develop further with the introduction of overnight and holiday time the child will benefit from exposure to other features of the father’s lifestyle and background including the culture and traditions of the father’s heritage. This father is particularly involved in artistic expression related to that heritage through the production of drama and the child will in my view be enriched by having an enhanced opportunities to participate in her culture and traditions.

Family violence

1. Although the mother made some allegations concerning family violence this did not feature as a real issue in the proceedings. The mother did not for example seek that I make findings in relation to that matter.

2. In any event I am not satisfied for the reasons given that the father has perpetrated family violence in the past or that there is an unacceptable risk that he would do so in the future.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. There is only one order in dispute between the parties which in my view may lead to the institution of further proceedings and that relates to changeover. The mother proposes that an order be made for changeover to be as agreed between the parties except where it occurs at school. Both the ICL and father propose orders that changeover occur at a specific place though the father does not specify a location on a Wednesday evening where he proposes changeover occur at a location agreed between the parties. 

2. In my view there is some risk as contended for by the father that if the location for changeover is not specified and is subject to agreement then the mother may not reach agreement with the father as to a suitable location and this may become a pretext for not complying with orders. Although it is sometime in the past and in a different context the mother did previously not comply with some of the arrangements that had been agreed between the parties in a parenting plan and did not make the child available for the few hours one afternoon each week as had been agreed. Although the risk that this may occur again is now less serious, there is no reason why this risk cannot be ameliorated by specifying where changeover is to occur.

Any other relevant consideration

1. The Minute of Orders sought by the ICL is drafted on assumption that the parenting arrangement would commence operating from October 2018, at the conclusion of the hearing. As such the ICL sought that there be a gradual increase in the father’s time with the child in Term One of the 2019 school year and a further increase in time in Term Two. As these orders are being made in the final weeks of Term One 2019, they will be made (as sought by the ICL), with an adjustment to reflect the four months in which this judgment was being written. This will still allow the child to adjust gradually to an increase in time with the father.

Conclusion

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.

3. In Goode & Goode[14] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [14] (2006) FLC 93-286

4. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

5. In these proceedings neither party nor the ICL suggests that the presumption does not apply on the basis of abuse or family violence. The mother contends that the presumption is rebutted by the evidence while the father relies upon the presumption which the ICL agrees should apply and is not rebutted.

6. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the child if such an order were made.

7. It is submitted on behalf of the mother that the presumption is rebutted as an examination of the whole of the evidence demonstrates that the parents cannot communicate, the father remains critical of the mother’s parenting style, the mother is anxious in relation to the child’s disclosure and as she maintains her allegations that the father is controlling and belittling. These matters it is submitted do not bode well for the capacity of the parents to make joint decision and foreshadow potential for an adverse impact on the overall management of the child’s life in the future.

8. On the basis of the mother’s own case she must be taken as having accepted that the allegations of the father’s controlling and belittling behaviour do not even at their highest amount to family violence. If she maintained that they did amount to family violence it would have been submitted on her behalf that the presumption does not apply.

9. So far as the mother’s anxiety is concerned, for the reasons given I am satisfied that it will not be a serious impediment to the child spending overnight time with the father which was the central matter in dispute in these proceedings. The difficulties with the parents in communicating with one another in the context of an ongoing dispute and where the mother retained some significant concern about the possibility of the child not remaining in her care must be viewed differently to their capacity after those matters have been settled by the court.

10. Further, the parents showed significant civility and a level of cooperation when assessed together by the expert and the father has displayed a distinct lack of outrage or personal hurt at the allegations made by the mother and a recognition that it is best for the child to remain in her care. These matters in my view bode well for the future.

11. An application for sole parental responsibility must be considered in the context of the presumption. I must determine whether this presumption is rebutted by the evidence such that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for her. Having regard to the principles underlying the Act, any order which removes a parent from all which is involved in the exercise of parental responsibility must be considered carefully.

12. In circumstances where I have found that there is a benefit to the child of having a meaningful relationship with the father, that she will be benefit from and be enriched by the further development of that relationship and there are no risks posed by him I do not consider that the presumption of equal shared parental responsibility is rebutted.

13. As I propose making an order for equal shared parental responsibility the Act then requires that I consider making an order of equal time for the parents or whether substantial and significant time with the parents would be in the child’s best interests. Neither parent seeks an order for equal time and the father recognises that practically he is not in a position to have the child live with him in such an arrangement. The time sought by the father and ICL amounts to substantial and significant time.

14. In coming to a view as to which proposal is proper having regard to the paramount consideration being the best interests of the child, I attach particular weight to the benefit to the child from having a meaningful relationship with both parents, the nature of her relationships, the likely effect of any change brought about as a result of the respective proposals and matters relating to the lifestyle, traditions and capacities of the parents. I am satisfied that an arrangement in which the child spends overnight time with her father each alternate weekend and ultimately spends half the school holidays with him is in her best interests.

15. There is very little difference between the proposals of the ICL and the father with the main point of difference being the more gradual introduction to holiday time in the proposal of the ICL. Having regard to the mother’s level of anxiety and the fact that the introduction of overnight time will be a significant change in itself for the child (albeit beneficial) compared to the arrangement throughout her life in my view it is more appropriate for that to occur gradually. For this reason I propose making orders largely in accordance with the ICL’s proposal. The only exception is that the midweek time on a Wednesday will conclude at 7 pm as proposed by the father rather than 6 pm as proposed by the ICL as it came to light at the very end of the proceedings that the mother works on Wednesday evenings until 7 pm. It would in my view benefit the child to spend an extra hour with the father rather than at the mother’s workplace or in the care of another person.

16. For the foregoing reasons I made the orders set out at the forefront of this judgment.

I certify that the preceding two hundred and forty-seven (247) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 29 March 2019.

Associate: 

Date:  29 March 2019