Nayar & Groth (No 4)
[2024] FedCFamC1F 160
•18 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nayar & Groth (No 4) [2024] FedCFamC1F 160
File number(s): CAC 1702 of 2021 Judgment of: GILL J Date of judgment: 18 March 2024 Catchwords: FAMILY LAW – PARENTING – where the parents separated before the birth of the child – where the child has lived solely with the mother and spent supervised time with the father – where the mother seeks for the child to spend no time with the father and alleges he poses an unacceptable risk – where the father seeks for the child to live with him as the mother is unwilling to foster a relationship between him and the child – where the parties do not have a working co-parenting relationship – held that the father does not pose an unacceptable risk to the child – parents to have equal shared parental responsibility – the child to continue living with the mother and spend supervised time with the father – time with the father to progress to unsupervised and then overnight time once the child settles into school.
FAMILY LAW – PROPERTY AND PROCEDURE – both parents to share the costs of the Independent Children’s Lawyer.Legislation: Family Law Act 1975 (Cth) – ss 60CA, 60CC, 60B and 65DA Cases cited: Eastley & Eastley [2022] FedCFamC1A 101
Isles & Nellisen[2022] FedCFamC1A 97
Jollie & Dysart [2014] FamCAFC 149
Marsden & Winch (No 3) [2007] FamCA 1364
M v M (1988) 166 CLR 69
Phillips & Hansford (No 2) (2019) 60 Fam LR 160
Valone & Sambrook [2010] FamCA 428
Division: Division 1 First Instance Number of paragraphs: 371 Date of hearing: 3-6 July 2023; 13-20 November 2023 & 18 March 2024 Place: Canberra Counsel for the Applicant: Mr Duane Solicitor for the Applicant: Farrar Gesini Dunn Counsel for the Respondent: Mr Stagg Solicitor for the Respondent: Parker Coles Curtis Solicitor for the Independent Children's Lawyer: Ms Mussato, Legal Aid, ACT ORDERS
CAC 1702 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GROTH
Applicant
AND: MR NAYAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
18 MARCH 2024
THE COURT ORDERS THAT:
1.All previous orders are discharged.
2.The parents shall have equal shared parental responsibility for the child, X Groth, to be known as X Nayar-Groth, born 2021 (“X”) in relation to major long-term decisions including, but not limited to, those concerning medical, educational and religious and cultural issues.
3.X shall live with the mother.
4.Unless otherwise agreed between the parties in writing, X shall spend time with the father as follows:
(a)On a supervised basis:
(i)From the date of these Orders until 15 August 2024, twice a week for three hours each visit, on a date and time as agreed but failing agreement on Tuesdays and Saturdays from 10.00 am to 1.00 pm.
(ii)From 15 August 2024 until the child turns 4 years of age in 2025, twice a week for four hours each visit, on a date and time as agreed but failing agreement on Tuesdayannexs and Saturdays from 10.00 am to 2.00 pm.
(b)Thereafter on an unsupervised basis:
(i)Upon X turning 4 years of age in 2025, twice a week for a period of five hours on Saturdays from 10.00 am to 3.00 pm and for three hours each Wednesday from 3.00 pm to 6.00 pm.
(ii)From 15 August 2025, twice a week for a period of seven hours on Saturdays from 10.00 am to 5.00 pm and for three hours each Wednesday from 3.00 pm to 6.00 pm.
(iii)From the commencement of term 3 in 2026, each alternate weekend from after school or 3.00 pm Friday to 5.00 pm Saturday, and for three hours each Wednesday from 3.00 pm to 6.00 pm.
(iv)From the commencement of term 1 in 2027, during school term time each alternate weekend from after school or 3.00 pm Friday to 5.00 pm Sunday, and for three hours each Wednesday from 3.00 pm to 6.00 pm.
(v)From the commencement of term 3 in 2027, during school term time each alternate weekend from after school or 3.00 pm Friday to the start of school on Monday, unless Monday is a Public Holiday or a pupil free day when this time shall extend to 5.00 pm, and for three hours each Wednesday from 3.00 pm to 6.00 pm.
(vi)From the commencement of term 1 in 2028, during school term time each alternate weekend from after school or 3.00 pm Friday to the start of school on Monday, unless Monday is a Public Holiday or a pupil free day when this time shall extend to the return to school on the Tuesday, and each alternate Wednesday from after school until the return to school the following day.
(vii)For the purpose of the preceding orders the alternate weekend time shall commence with X spending the first weekend of each term with the father.
(viii)For the purpose of the preceding orders the alternate Wednesday shall be deemed to be the Wednesday prior to the weekend on which X shall spend time with the father in accordance with the above orders.
(ix)For the purpose of order 4(a) above:
A.the father is at liberty to nominate a supervisor or supervisors of his choice.
B.The father shall maintain a record of who has supervised each period of time he spends with X.
C.Supervision requires the supervisor to generally be in the presence of X but does not require the supervisor to maintain line of sight to X at all times or to be in the same room as X at all times.
School Holidays
5.For the avoidance of doubt the school holidays commence at 3.00 pm on the last day requiring attendance of X at school and conclude at 9.00 am on the first day X is required to attend school in the following term.
6.Unless otherwise agreed in writing between the parties, X shall spend school holidays with the parents as follows:
(a)Until the commencement of term 1 in 2027 in accordance with orders 4(a)(i) and (ii) and 4(b)(i), (ii) and (iii).
(b)Commencing from the beginning of X’s second year in school in 2027, with the father:
(i)From the conclusion of school or 3.00 pm on the last day requiring attendance at school for a period of four consecutive nights and ending at 3.00 pm following the fourth night during term 1, 2 and 3 school holiday periods.
(ii)From the conclusion of school or 3.00 pm on the last day requiring attendance at school for a period of four consecutive nights and ending at 3.00 pm following the fourth night during the end of year school holidays, and thereafter in the identical pattern for four consecutive nights in each alternate week thereafter during that holiday period.
(c)Commencing from the beginning of X’s third year in school, with the father:
(i)From the conclusion of school or 3.00 pm on the last day requiring attendance at school to 3.00 pm on the Saturday closest to the mid point of the holiday period during term 1, 2 and 3 school holiday periods during odd numbered years;
(ii)From 3.00 pm on the Saturday closest to the mid point of the holiday period of the term 1, 2 and 3 school holiday periods to the commencement of school the following term in even numbered years;
(iii)From the conclusion of school or 3.00 pm on the last day requiring attendance at school to the Saturday closest to the mid point of the holiday period of the extended end of year school holiday period in odd numbered years; and
(iv)From Saturday closest to the mid point of the holiday period of the extended end of year school holiday period to the commencement of school or 9.00 am on the first day of school the following school year in even numbered years.
Special Occasions
7.Subject to the parties agreeing otherwise in writing and notwithstanding any other order X shall spend time with each of the parents as follows:
(a)with the mother from 5.00 pm on 23 December to 10.00 am on 27 December each year.
(b)with the father from 2.00 pm on whichever day a significan religious festival falls each year, to 11.00 am the following morning.
(c)on her birthday with the parent who is not otherwise caring for her that day pursuant to these orders from the conclusion of school to 6.00 pm on a school day and from 10.00 am to 2.00 pm on a non-school day.
(d)with the mother from 5.00 pm the day before Mother’s Day to the commencement of the school on the day following Mother’s Day.
(e)with the father from 5.00 pm the day before Father’s Day to the commencement of school on the day following Father’s Day.
(f)if X is not with the parent on the parent’s birthday, the parent who is caring for her that day shall facilitate a facetime to the other parent at an agreed time or otherwise at 9.00 am.
Changeover
8.Unless otherwise agreed in writing, changeovers are to be effected as follows:
(a)where changeover occurs on a school day and X is at school, then to or from school;
(b)where changeover occurs otherwise than in accordance with the previous order, then at D Centre.
(c)in the event that D Centre is unable to facilitate handover in accordance with the preceding order then such shall occur at the entrance to the Woolworths Supermarket City S.
9.The parents shall forthwith do all acts and things and sign all documents necessary to engage the D Centre Changeover Program on an ongoing basis to facilitate handover in accordance with these orders.
Authorities and exchanges of information
10.These orders act as authority for any daycare, preschool and school X will attend from time to time to provide both parents with copies of all information including reports, newsletters, excursion forms and notices ordinarily provided to parents of students.
11.These orders act as authority for any medical, health or allied health facility or organisation, including psychological or counselling services that X attends, to provide both parents with reports, information and results about the child as requested by them.
12.Each parent will notify the other as soon as practical via telephone of any serious injury or illness suffered by X in their care, and the name and contact details of any treating medical professional.
13.Each parent must advise the other parent within 24 hours of any appointments being made for X, including the date and time of the appointment, the name and contact details of any general practitioner, paediatrician, optometrist or other medical professionals and/or specialist who is to treat X and the purpose of the appointment. The parent who makes the appointment will take the child to the appointment and where possible shall not book appointments in the other parent’s time with the child.
14.Unless otherwise agreed in writing, absent illness requiring hospitalisation, X shall spend time with each parent in accordance with these orders and with the appropriate exchange of information about the symptom, treatment and medication to treat any illness being experienced by one or both of the children, being provided to the other parent.
15.Each parent notify the other of the name and contact details of any general practitioner, paediatrician, optometrist or other medical professionals and/or specialist who treats the children while X is in that parent’s care.
Communication
16.The parents may communicate through the “Talking Parents” app, or any other such electronic communication platform as may be agreed by them from time to time.
17.In a medical emergency the parents may communicate via text message.
18.Each parent is to advise the other parent of their mobile telephone number and residential address within 48 hours of the making of these orders and to advise of any change to address or mobile telephone number within 72 hours of such change occurring.
Agreement in writing
19.The parents are at liberty to vary by agreement the arrangements for the child to spend time with each of them, and as to the frequency and manner of communication between the child and each parent and as to the handover arrangements, provided such agreement is evidenced in writing.
Restraints
20.The parties are restrained by injunction from denigrating the other parent or members of their family in the presence or hearing of the child.
Other matters
21.Subject to the authenticated consent of all parents required to provide consent by Part VII of the Family Law Act 1975 (Cth), each parent, Ms Groth (born … 1984) and Mr Nayar (born … 1988) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X Groth, also known as X Nayar-Groth, (born … 2021) from the Commonwealth of Australia for a period of five (5) years from the date of these Orders AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, until the Court orders its removal or with the written consent of all parents.
22.The name of X Groth born 2021 should be changed to X Nayar-Groth.
23.The father is entitled to apply to the Registrar-General, without the involvement of the mother, to change the name of X Groth born 2021 to X Nayar-Groth.
24.The costs of the Independent Children’s Lawyer be paid by each of the parents in the sum of $10,993.78 within 21 days of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
INTRODUCTION
These proceedings concern the parenting arrangements for the child of the parties, X, born 2021.
The parties’ relationship started in 2019, with cohabitation later commencing in 2020, followed by the mother falling pregnant. The father proposed marriage during the pregnancy and they became engaged. The parties separated about a month before X was born.
X has been in the care of the mother since her birth and first met the father when she was over 6 months old, following the father applying to the court. The father has had no unsupervised visits with X. Their visits were initially professionally supervised before becoming supervised by the father’s friends and family.
By the end of the trial the parties’ positions were, in general terms, for the mother that X would live with her and spend no time with the father; for the father that X would live with him, with a moratorium on her time with the mother prior to a gradual reintroduction; for the Independent Children’s Lawyer (“the ICL”) that X would live with the mother, that the mother would have sole parental responsibility, with a graduated increase in her time with the father.[1]
[1] Ex ICL 1 as modified in final submissions by the ICL in respect of a change in the position as to parental responsibility (T489)
In pursuing these ends the parties’ and the ICL’s cases focussed upon a set of interlocking considerations related to X being at risk of harm or other deleterious impacts, and the benefits that X has with each of her parents. In summary, these centred firstly on the mother’s assertion that the father poses an unacceptable risk of harm to X, by virtue of a sexual abuse risk, risks associated with his mental health and alcohol and drug use, and risks related to the father’s alleged history of perpetrating abuse and family violence.
Secondly, risks were asserted to flow from the father’s limited capacity to care for X, said in part to flow from his diagnosis of autism spectrum disorder, the corollary being risks to X flowing from a lack of relationship with the father.
Thirdly, they centred on the implications if the father in fact does not pose the risks that the mother asserts. These are the risks and detriments that flow from the mother’s adverse beliefs in respect of the father. The potential impact of the mother’s view of the father includes a risk that X will miss out on the benefits of relationship with him, and a risk that X may be wrongly convinced that she has been sexually abused by the father. Further, X faces the effects of the compromise of the mother’s parenting capacity should X spend time with the father, given the mother’s concerns about him.
Fourthly, risk was identified as related to the prospect of X changing from the primary care of the mother and the deleterious effect that such a change would have on her.
Structure of this judgment
As identified above, the parties’ cases focussed upon a set of interlocking considerations related to X being at risk of harm, and the benefits that X has with each of her parents.
Set out first in this judgment will be the orders sought by each of the parties and the ICL, material relied upon and the legal principles relevant to the judgment.
To set the context for the issues identified above, an overarching history of the parties’ relationship, combined with the arrangements that have been in place for the parenting of X, including the phases of supervised time spent with the father, will be set out next.
This will be followed by a summary of the matters focussed upon by the parties and the ICL at the end of the hearing, in order to ensure that the issues that the parties regarded as of importance are identified, so that the balance of the evidence can be considered in that framework.
The various factual contentions as to risk will then be set out and assessed against the evidence presented in the proceedings.
The judgment will then set out the expert evidence given in the proceedings.
Consideration will be given to the orders that are appropriate to meet X’s best interests.
ORDERS SOUGHT
Applicant mother
The mother sought to have sole parental responsibility for X. She sought for X to live with her and to spend no time with the father. In the event that time is to take place between X and the father, the mother sought that X spend professionally supervised time with the father.
Respondent father
During the trial, the father filed an updated minute of orders, which sought that he have sole parental responsibility for X and for X to live with him. He sought that an initial moratorium be placed on the mother’s time or communication with X for a period of six months, with time recommencing in a gradual manner and in a professionally supervised environment after this period. He also sought orders that the mother participate in psychological counselling once per fortnight for a period of two years and for the father to arrange counselling for himself and X to assist in the transition of X into his care. The father submitted that the change in orders was not his preferred option, however, was a necessary position in circumstances where the mother is unwilling to facilitate any kind of relationship between X and the father. In his final submissions, the father submitted that in the alternative, the parties should have equal shared parental responsibility for education, cultural and medical matters at the very least.
In the event that X is to live primarily with the mother, the father sought gradually increasing time with X generally in accordance with the pattern identified by the single expert, Mr T, the exception being for overnight time to commence once X starts school, rather than later as recommended by Mr T. He further sought that he and X should be able to engage in family therapy together through Dr U.
The Independent Children’s Lawyer
In her minute of orders, the ICL initially sought for the parties to have equal shared parental responsibility for X. However, at the conclusion of the trial, the ICL submitted that based on the evidence at trial, such an order would not work, as the parties do not have any co-parenting relationship. The ICL instead sought for the mother to have sole parental responsibility. The ICL initially sought for X to live with the mother and to spend unsupervised time with the father for three hours, twice a week, with this time increasing in duration to overnight and school holiday periods as X enters into schooling. In her final submissions, the ICL instead adopted the gradual increase in time that the father should spend with X as recommended by Mr T in his oral evidence. The ICL submitted that, as X has grown accustomed to the father’s home, this time does not need to be professionally supervised and the current requirement of two supervisors instead of one, is no longer necessary.
In his oral evidence, Mr T recommended that, should the court find that an unacceptable risk does not exist, the father’s time with X continue to be supervised for the next 12 to 18 months. In the absence of unacceptable risk, Mr T suggested that this supervision would be beneficial while X’s language skills develop so that when unsupervised time commences, she can provide more clear descriptions of what occurred during visits. Mr T also recommended that between six months into kindergarten and the end of kindergarten that time with the father moves towards full days on Saturday, followed by full days on Sunday and after that has been in place for at least three months, attempt overnight time. Mr T recommended that the father’s time with X increase by one overnight every three months, on the condition that the current level of overnight time is being tolerated by X.
MATERIAL RELIED UPON
Applicant mother
The mother relied upon the following affidavits:
(a)Affidavit of the mother filed 16 May 2023
(b)Affidavit of the mother filed 21 June 2023
(c)Affidavit of Ms V filed 16 May 2023
(d)Affidavit of Ms V filed 21 June 2023
(e)Affidavit of Mr W filed 16 May 2023
(f)Affidavits of Mr P filed 15 May 2023
Respondent father
The father relied upon the following:
(a)Affidavit of the father filed 7 June 2023
(b)Affidavit of Ms Y filed 5 June 2023
(c)Affidavit of Mr Z filed 5 June 2023
(d)Affidavit of Ms R filed 5 June 2023
(e)Affidavit of Ms B filed 6 June 2023
(f)Affidavit of Dr Q filed 6 June 2023
(g)Affidavit of Ms F filed 5 June 2023
(h)Affidavit of Ms AA filed 6 June 2023
(i)Affidavit of Mr BB filed 5 June 2023
(j)Affidavit of Ms C filed 5 June 2023
(k)Affidavit of Mr K filed 5 June 2023
(l)Affidavit of Dr CC filed 20 June 2023
(m)Affidavit of Dr DD filed 22 June 2023
The Independent Children’s Lawyer
The ICL relied upon the following:
(a)Affidavit of Mr T filed 26 October 2021
(b)Updated family report by Mr T filed 28 June 2023
(c)Affidavit of Dr EE filed 14 July 2022
(d)Responses to questions by Dr EE filed 4 November 2022
PRINCIPLES
The focus and the paramount consideration in determining what order should be made for X is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), her best interests. That is to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The objects and principles give a legislative background for the examination of the considerations contained at s 60CC of the Act in determining best interests. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) 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).
It should be acknowledged that in any individual case the objects and principles may point in different directions and find different emphasis, depending on the circumstances of the particular child.
Against this background, in determining a child’s best interests, the Court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings,”[2] and are “relevant to the particular circumstances of the child.”[3] This calls for a focused examination of the considerations that arise in the individual case. While often the evidence filed in a case ranges across, and touches upon, many of the considerations, those that require closest attention can usually be identified from the matters that the parties ultimately placed emphasis upon in the trial.
[2] Phillips & Hansford(No 2) (2019) 60 Fam LR 160 at [43].
[3] Jollie & Dysart [2014] FamCAFC 149 at [45].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is the synthesis of the considerations that determines best interest.
The considerations have themselves been divided into primary and additional considerations.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence.
The structure of s 60CC points to some emphasis being given to the two primary considerations. In Marsden & Winch (No 3),[4] Warnick and Thackray JJ observed that the primary considerations are “manifestly of the utmost importance in determining what outcome will best advance a child’s interests.” Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations.
[4] Marsden & Winch (No 3) [2007] FamCA 1364 at [78].
The primary considerations are, however, to be considered as a part of the whole suite of considerations contained at s 60CC. Often there is overlap between the considerations, and often many of the additional considerations are effectively subsumed into the primary considerations. For example, s 60CC(3)(j)’s reference to “any family violence involving the child or a member of the child’s family” necessarily forms a part of the protective considerations of s 60CC(2)(b) and may also form a part of the consideration of the degree of benefit flowing to the child from meaningful relationship with a parent at s 60CC(2)(a). Similarly, s 60CC(3)(f)’s reference to the capacity to provide for the needs of the child necessarily forms a part of the consideration of the benefits of meaningful relationship at s 60CC(2)(a).
Without being exhaustive, in this case the considerations engaged with most closely included the need to protect X from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence; upon the benefit to X of having a meaningful relationship with both of her parents; the risk of harm to X as a result of deficits in each parent’s capacity to provide for her needs, whether because of the mother’s concerns about the father, or limitations in the father’s capacity by virtue of an autism spectrum disorder, or otherwise; the nature of the relationship X has with each parent; the effect of change (for example, the mother asked that the impact of the orders upon her, and in a connected manner upon her parenting of X should also be considered; and whether it would be preferable to make the order least likely to lead to future litigation.
It should not be thought that this exhaustively describes the application of the considerations to this case. It merely forms a high-level summary of the manner in which the parties emphasised their cases by the end of the final hearing.
Prominent amongst these matters is the assessment of various risks that were asserted by the parties to be faced by X.
As identified in the Full Court case of Isles & Nellisen,[5] the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.”
[5] Isles & Nellisen [2022] FedCFamC1A 97 at [138].
Here, not unusually, factual findings about past events take place in the context of contested facts, where the parties are in dispute as to what has happened both between them and to X and accordingly where there may be uncertainty as to what has gone on.
The Full Court identified that, depending upon the evidence before the Court, a risk of future abuse may be established by the possibility of past abuse, a conclusion consistent with the reasoning of the High Court in the foundational case about risk, M v M.[6]
[6] M v M (1988) 166 CLR 69.
Such an understanding was recently further confirmed by the Full Court in Eastley & Eastley,[7] (at [31]):
There could be no error in abstaining from making a definitive factual finding when the primary judge explained why he was not convinced on the balance of probabilities the incident occurred ... However, the primary judge’s enduring suspicion the incident might have occurred ...was still legitimately available to take into account as part of the matrix of evidence upon which the finding of “unacceptable risk” was premised. It is well accepted that an accumulation of factors, not individually proven on the balance of probabilities, can still be enough to demonstrate the existence of an unacceptable risk of harm to children.
[7] Eastley & Eastley [2022] FedCFamC1A 101.
Finally, in that same case the Full Court (at [33]) observed the need for a trial judge to consider the whole of the evidence in determining the question of risk, rather than merely dealing with each allegation in an isolated fashion:
…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands
(citations omitted)
This understanding of risk analysis is central to the determination of this case where such emphasis was placed upon the different risks to which X is potentially exposed.
As identified above, each of these matters requires weighing in the context of the other considerations as they arise in the case, such that in combination they determine the orders that will support X’s best interests.
OVERARCHING HISTORY OF THE RELATIONSHIP
The mother was born in 1984.
The father was born in 1988 in Country FF. He moved to Australia in 1997 when he was 9 years old and became an Australian citizen in 2005.
There is one child of the relationship, X, born 2021.
The parties met and commenced a relationship in late 2019.
There was a brief break in the relationship at the start of May 2020, but the parties commenced living together in May 2020 at the father’s shared accommodation.
The mother asserts that she lived with her parents for approximately 8 weeks in July and August 2020 due to Covid-19 concerns.
In August 2020 the mother and father moved out of the father’s shared accommodation and into an apartment together
In late 2020, the parties became engaged to be married.
The parties separated in early 2021 and the mother moved out of the apartment.
In early 2021, the mother applied for and was granted an interim Family Violence Order on an ex parte basis.
X was born in 2021. The father found out about the birth from his lawyers some weeks after it occurred.
Interim orders were made on 29 September 2021 that the father’s name be added to X’s birth certificate and that the father spend professionally supervised time with X on a weekly basis.
In October 2021 X first met and spent time with the father, supervised by a professional agency, E Centre.
Interim orders were made on 27 October 2021 that the father spend professionally supervised time with X at D Centre (another professional supervision agency) weekly.
X continued to spend professionally supervised time with the father at E Centre until February 2022, when X spent time with the father for the first time at D Centre. Those visits continued weekly.
E Centre produced reports in relation to X’s time with the father. The mother asserted that she did not read all of the reports. Given the level of angst she has expressed about X’s time with the father, and the level of scrutiny that she has applied to X’s appearance following time with the father, this assertion was difficult to comprehend. However, the mother explained that it was too upsetting at the time, and that she has not gone back to read the reports prepared by the agency (which were largely in favourable terms). The mother also had information about the visits from her father (the maternal grandfather) who attended many of the sessions, often describing them in negative terms. At the hearing these criticisms were answered by the supervision agency at Exhibit F14. The supervisor’s response clarified that many of the comments attributed to her were not intended to be critical of the father and were misconstrued by the maternal grandfather to place the father’s behaviour at the visit in a negative light. She further denied making a number of comments attributed to her and alleged that the maternal grandfather either made them up or did “not understand the context of what I said”.[8]
[8] Ex F14, page 2.
The mother contended that X became increasingly dysregulated in the latter stages of 2022.[9] She was concerned that X may have been traumatised by spending time with the father. The mother was also critical of the father’s conduct at D Centre, citing an example where he allowed X to walk along a retaining wall unassisted, and where X, in his care, had walked up and down twenty stairs a number of times when she was just learning to walk. These matters had also been the subject of complaint by the mother’s father who had attended D Centre with X.[10]
[9] Transcript 14 November 2023, p. 162 lines 43-45; p 163 lines 1-3.
[10] Transcript 14 November 2023, p. 167 lines 16-20.
These complaints, even if correct descriptions, do not describe material default on the part of the father in his care of X, and appear unreasonably critical of the father.
On 22 December 2022 interim orders were made that X’s time with the father was no longer required to be professionally supervised and that it could be supervised by one of a list of supervisors who are friends and family of the father. The orders also provided that X’s time with the father incrementally increase to six hours each week.
X spent time with the father at D Centre for the last time in January 2023. On 17 January 2023, X spent non-professionally supervised time with the father. This was their first time spent together that was not professionally supervised. X spent supervised time with the father on four other occasions prior to 7 March 2023.
The mother asserts that in early 2023 X returned from time with the father complaining of dizziness and a headache. Three days later the mother took X to the hospital emergency department, describing that a suspected mild concussion was confirmed. She later accepted however that X was not diagnosed with mild concussion, but that she had symptoms consistent with such.
The mother asserted that X said to her that she had hit her head at the father’s home. The father denied that such had occurred.
The circumstances were not sufficient to establish that X suffered a head injury or concussion at the father’s home. Even if her presentation was consistent with a mild concussion, that consistency, even coupled with the words attributed to X does not, in the face of the father’s denial, establish that concussion was the cause of X’s presentation.
On 7 March 2023, the mother made assertions about the father’s behaviour and cancelled the visit scheduled for that day. The next weekly visit was also cancelled by the mother.
The mother filed an Application in a Proceeding on 21 March 2023 that asked for X’s time with the father return to professional supervision at D Centre. The next two supervised visits were cancelled by the mother.
On 29 March, X spent professionally supervised time with the father at E Centre.
The mother’s application for a return to professional supervision was dismissed on 14 April 2023. After this X continued to spend time with the father on a weekly basis supervised by the father’s friends or family.
ISSUES FOCUSSED UPON BY THE PARTIES AT THE END OF THE CASE
The Independent Children’s Lawyer
In final submissions the ICL observed that the parents do not have a relationship that will support the sharing of parental responsibility. The ICL sought that X live with the mother. The ICL rejected the notion that the father presents an unacceptable risk of harm to X, and submitted that X should have the benefit of developing and maintaining a meaningful relationship with him. The ICL departed from her proposed minute of orders, asserting that there should continue to be supervised time for 12-18 months to allow X’s verbal skills to increase and to give reassurance to the mother, apparently to avoid potential misconstructions by the mother of what has happened at the father’s home. The ICL further supported a transition to overnight time following X commencing kindergarten.
The ICL asserted that the mother does not pose an unacceptable risk to X. While she accepted that the mother has fixed negative views about the father, she submitted that the mother would comply with court orders.
The ICL opposed an immediate change for X to live with the father, asserting that would subject X to emotional and psychological abuse.
The mother
At the end of the trial the mother did not seek a positive finding that the father has sexually abused X.
The mother however submitted that a cumulation of matters should lead to a conclusion that the father presents an unacceptable risk of abuse to X, comprising a sexual abuse risk, a risk related to the father’s mental health, risks flowing from prior aggression, abuse and violence on the part of the father, both in the relationship and towards other persons, and risks flowing from the father’s use of alcohol and other drugs.
The mother observed that there was no substantive challenge to her description of X displaying a variety of dysregulated behaviours, and that in the absence of such a challenge, findings ought to be made in accordance with her observations.
The mother submitted that the range of different behaviours on the part of X leave open as an explanation the possibility of sexual abuse, but accepted that the evidence of the supervisors stood against such a conclusion. She did not however accept that the supervisors had in fact kept X safe from the father.
The mother further pointed to risk from drug and alcohol use, in a context where evidence pointed away from a conclusion that the father was currently using such. The mother submitted that the issue that arose was as to whether that evidence formed a sufficient amelioration of the risk posed by the previous drug and alcohol use, particularly as described by her during the relationship. As part of this consideration the mother urged a conclusion that the father has not honestly represented his prior use, and that his failure to do so leads to a stronger assessment of risk due at least in part to a lack of insight. Similar issues were said to arise from the father’s irresponsible approach to the outbreak of COVID.
In relation to the significance of the father’s mental health, dealing firstly with the issue of an autism spectrum disorder, the mother pointed to a potential impact upon the father’s capacity to coparent with the mother, in particular to communicate with the mother. In terms of the impact more directly upon X, the mother pointed to potential difficulties with the father empathising with and addressing the needs of X.
In relation to family violence, the mother pointed to two instances of alleged physical violence (the sock incident and the choking incident set out below) and to statements made by the father that (even if not directed to the mother) were threatening or inappropriate. These, she said, were to be combined with hostile and aggressive body language and words in assessing such a risk.
In response to the potential risk to X (should the court consider that there is no unacceptable risk posed by the father) of the mother engaging in micro-scrutiny of X, of X being wrongly persuaded that she has been the victim of sexual abuse by the father, and of the mother depriving X of a meaningful relationship with the father, the mother urged that these risks not be considered to be abuse, given the genuineness of the mother’s contentions. The mother accepted that the underlying dynamics, related to her concerns for X, that might lead to such outcomes are unlikely to change, other than that X will get older. She accepted that risks associated with these dynamics remain whilst X continues to spend time with the father. The mother asserted that such risks would abate on X no longer spending time with the father.
As to the proposition that the mother and her family have already concluded that X has been so abused by the father, and the risk that such a belief would continue to subsist even if time with the father now stops, the mother pointed to a previous instance of X becoming less dysregulated when time with the father did not take place for a period. This, she contended, ameliorated issues relating to an ongoing belief that the father has harmed X.
The mother pointed to the father’s solution, of a change in residence, as carrying with it the prospect of being extremely traumatic for X.
In the absence of a conclusion of unacceptable risk the mother submitted that the level of conflict between the parties should still lead to orders for no time with the father.
The mother accepted that the central aspects of the balancing exercise, in the absence of a conclusion of unacceptable risk posed by the father, is a weighing of the risk of adverse impact upon X of micro-scrutiny, the enduring suspicion that X is being abused by the father, and the effects of conflict against the benefits of X having a relationship with the father.
The mother noted that unsupervised time in the context of the mother’s belief carries with it the risk of further litigation. However, the mother submitted that she would comply with whatever orders are made, noting that she has been compliant to date.
The father
Although the father seeks a change in residence for X to live with him, he asserted that this was not his preferred order, as his preference is for X to have a meaningful relationship with both of her parents. He asserts that the position that he has adopted is necessitated by the mother’s unwillingness to foster a relationship between X and the father.
The father submitted that this was illustrated by circumstances surrounding X’s birth, about which the father was not advised, and the omission of the father from X’s birth certificate. He contends that at each step the mother has sought to prevent the father having either knowledge of, or a relationship with X.
The father opposes an order for the mother to have sole parental responsibility. He seeks sole parental responsibility if X is to live with him, but if not, then seeks equally shared parental responsibility, particularly where, he submits, X’s dysregulated behaviour requires intervention, and where the mother has not taken steps to foster X’s Country FF heritage and culture. Although he concedes that there are issues attached to the sharing of parental responsibility, he submits that a bigger issue arises from removing parental responsibility from him (as illustrated by the above issues).
The father further submits that the conflict in the relationship is one way. While he asserts a willingness to cooperate, he says that it is the mother who is the instigator of conflict. Despite the mother’s descriptions of adverse impact upon her of the father’s communications, her described experience of them as intimidating, threatening and harassing is not reflected in the many text messages that passed between them during the relationship, nor otherwise in the evidence presented to the court.
The father points to supervision reports that show a growing relationship between the father and X, and other than indicating that as a new parent, the father required some guidance, indicate no concerns with the father’s conduct.
The father denies the mother’s assertion that he has used the court system in an abusive fashion.
The father observes that he has followed recommendations made by the experts in the case, from Mr T that schema therapy be undertaken, and from Dr EE, that he have therapy in relation to autism spectrum disorder. Further he has obtained specific advice on his relationship with X and how to facilitate that.
The father submits that the court should find that there has been no family violence in the relationship between the parents.
The father points to the mother’s description of family violence worsening as the proceedings have unfolded in a manner suggestive of embellishment. He further notes that adverse assessment of his mental health only arises in the event that the mother’s claims are made out.
He points to the mother’s assertions regarding his drug and alcohol use either not being adequately supported, or being denied by other witnesses. He further points to the series of hair follicle tests as indicative of drugs not being a risk issue.
In relation to the sexual abuse risk the father submits that it has arisen in circumstances where the father has always been supervised, rendering such abuse improbable. He submits that the mother has catastrophised in respect of an innocent interaction (blowing upon the child as a means of giving comfort) interpreting such as a sexual act.
Although no direct challenge was made by the father in relation to the mother’s descriptions of dysregulated behaviour by X, he points to potential unreliability caused by the mother catastrophising. He also observes that expert evidence undermines the idea that such reported behaviour is indicative of sexual abuse. The father also noted the expert evidence that should X become persuaded that she has been sexually abused, then the psychological impact mirrors that of actually having been sexually abused.
The result, according to the father is that to protect X from such effects X should move into his primary care, which would allow X to have a relationship with both of her parents, and allow X to develop and maintain an attachment with the father. The father conceded that there was no expert evidence to support this as a means for attaining such an attachment. The father also accepted that the evidence was that a transfer to the care of the father and moratorium on time with the mother would have a significant effect upon her. The father acknowledged that it would be devastating to X.
In response to the mother’s argument that the various risks should be examined cumulatively, the father submits that firstly they should be examined individually. He says that individual examination would reveal that they are not matters of concern, leading also to the conclusion that cumulatively they are not matters of concern.
The father submitted that the three sets of risks to be navigated in determining X’s best interests are those asserted by the mother to be posed by the father, the risks posed by the mother to X as set out above, and the risks posed by an immediate change in residence for X.
In the event that orders are made for X to continue to live with the mother, but to spend time with the father, the father ultimately adopted the regime of transition to overnight time proposed by Mr T.
If orders were made for X to continue living with the mother but to spend time with the father, the father (similar to the mother) said that such orders are the most likely to lead to further litigation.
RISK ISSUES
As seen above, a key consideration in this case was the mother’s allegations against the father. The mother’s position is that the father should have no time with X, by reason of physical and psychological abuse, potential neglect and mistreatment, the father’s mental health, drug and alcohol abuse, possible sexual abuse or grooming of X having taken place, psychological effects on X of time with the father and the psychological impact upon the mother.
The mother’s position is that the father cannot be trusted, and further that the arrangements for X to have supervised time have not protected X. Her position is that the supervisors have not been truthful, and she maintains, despite supervision, concern that the father has sexually dealt with X. She considers that the father is harming X to harm the mother.
This relies in large part upon her observations of X, purported comments by X, and her assertions of X’s dysregulation following time with the father. She describes that this dysregulation takes the form of X being overly clingy, running around in a hyperactive manner, crying excessively and suffering poor sleep and appetite. She does not accept that there is evidence of benefits to X of having a relationship with the father, asserting that X’s dysregulation improves when she spends less time with the father, and worsens when she spends time with him.
As identified above, the mother relies upon the combined effect of these factors, while the father asserts that each of the matters raised is unmeritorious, and, accordingly, they are unable to carry weight even if combined.
Acknowledging there may be overlap between them, it is convenient however to examine each in turn.
Sexual abuse risk
Although the mother accepts that she perceived nothing during the relationship that indicated any such interest in children by the father, prominent amongst the risks asserted by the mother is that the father poses a risk of sexual abuse to X.
The mother identified that her first point of concern was X’s use of the term “puffy” following spending time with the father. The mother equated this to an act between the parties during the relationship that she characterised as sexual.
The parties agreed that a puffy involves one person blowing air upon another. The father described that it is an act of comfort or affection that he learned from his grandmother, and involves gentle blowing of air upon skin or clothing, for example when a child has been hurt in a particular spot. The mother accepted that such a use of a puffy had come from the father’s grandmother. She said that the father had subsequently adopted it for sexual purposes during the relationship, blowing air on her genitals, describing such as a puffy. The father denied that it had a sexual connotation during the relationship, accepting that it was done once on the mother’s pubic area but not in a sexual way.
While the mother accepted that giving X a puffy was not necessarily a sexual act, she posited that it may be part of a “broader campaign of terror to make me think what might be possible,” based on what she described as X’s demonstrations and disclosures.[11] She asserts that X’s use of the puffy came close to replicating the sexual use she attributes to the father, albeit without the mother providing adequate description to demonstrate its sexual connotation.
[11] Transcript 14 November 2023, p. 174 lines 19-20.
The mother described X as using the term “puffy” and blowing onto a cloth, onto the maternal grandmother’s knees, on the mother’s shoulder, face and lower tummy, or blowing on sheets or a pillow and describing such as a “puffy”.
The mother says that X pushed the mother’s head toward her stomach and asked the mother to do a puffy, which the mother refused. She says X also blew a puffy on the mother’s t-shirt over her stomach area, and has also done so on the edge of the mother’s mouth or cheek.
Despite describing the above in careful detail, without descending to any particulars the mother said that X has tried to give the mother a puffy around her lower stomach and crotch area.
A second aspect of the mother’s concern as to abuse during X’s time with the father relies heavily upon her, and her family’s observations of X, and what X has said to her, or to her parents. These may be broadly described as dysregulated conduct by X, and sexualised conduct by X.
The content of the description was, as briefly summarised by the mother to the ICL:
[X] being overly clingy, running around non-stop hyperactively, crying excessively, having disruptions to her sleep and eating.[12]
[12] Transcript 14 November 2023, p. 189 lines 13-15.
The above description may be seen as a high-level summary. The mother and her family members described in great detail X’s presentation following the commencement of time with the father. The mother described various behaviours by X, including X startling easily, changes in her sleep patterns, banging her head, hitting herself, biting her lip, pulling leaves from a plant, asking to be carried, shaking in response to seeing a stranger, asking if she is naughty, messing up the alphabet, no longer napping in the car, becoming afraid of bricks in the fireplace and likening them to the father’s home, lightly punching the mother’s face, saying that she was sorry and that something was her fault, refusing favourite foods, waking terrified, not liking and resisting having clothes changed, saying “I’m a dog too,” becoming afraid of the dark, breathing rapidly and shrugging her shoulders, not liking being tickled, not being happy playing on her own. The mother says that these are not normal for X.
No significant direct challenge was made to this aspect of the mother’s and maternal family’s testimony, other than to note the observation made by the single expert, Mr T, that the mother appeared to be prone to catastrophising, a description suggestive that the mother’s descriptions may be exaggerated.
The mother also relied upon comments and specific behaviour by X. She described that in November and December 2022 X began saying “open legs” and “open wide” and spreading her legs when being changed, not having said or done this before, nor having been asked to by the mother and her family. She further described that since January 2023, X has positioned herself on the bed with her face down and bottom in the air, and that she has placed a soft toy between her legs and pressed her stomach or crotch into it, on one occasion moving her hips back and forth. The mother also described that X has bitten or licked the sheets with her bottom in the air, and said “dadda like that.”
X has said to the mother that when she naps, she lies down with dadda. The mother says that X has pinched the mother hard, that X has cried in the bath and said not to wash or put soap in her bottom, and that on occasion she has observed red marks either side of X’s vagina. On one occasion in February 2023 the mother says that X’s vagina appeared redder than usual.
The mother described that X has cried, stiffened her legs and tightened her bottom during nappy changes, kicking and hitting to avoid being changed.
The mother says that in March 2023 X described to her that the father had changed her nappy whilst she was on her tummy, with her bottom in the air. She says that X also reached around and tried to put her fingers in her anus. When asked what she was doing she said “just something.” The mother described that X then spread her vagina with her fingers. The mother asked X if the father touched her “fanny” but X did not answer. The mother says X said that the father had said that “little eggs come out of [X’s] bottom with little babies in them.”
The mother then stopped X’s visits with the father, spoke to her psychologist, to child welfare agencies and attended the police where X was interviewed.
The mother says that X’s behaviour improved drastically during the period when she ceased spending time with the father, but reverted when time recommenced. This included a description that in April 2023 when being changed X said that there was a little ball in her bottom and yelled “dadda, dadda, dadda no no no” repeatedly.
The mother said that X, on a number of occasions said that she was not going to see the father anymore.
Perhaps the apex examples of X saying or demonstrating things appeared in X’s attendance upon GG Hospital.
In mid-2023 X attended GG Hospital for an assessment, accompanied by the mother and maternal grandmother.
Exhibit F17 is the report prepared by GG Hospital, along with answers to a number of questions, authored by Paediatrician Dr HH, who examined X and was assisted by Dr JJ. The report was prepared following referral by the Sexual Assault and Child Abuse Team of the AFP due to concerns as to sexual assault.
The report contained the following assertions by the mother:
(1)X touching and inserting her fingers into her vulva, and appearing to be distressed when prevented from doing so;
(2)X spreading her legs, buttock cheeks and labia;
(3)X asking the maternal grandmother to kiss her bottom;
(4)X licking her aunt’s arm and telling her that she is pretty;
(5)X appearing anxious during nappy changes, and having said “don’t lick me” during a nappy change;
(6)X’s vulva having redness following contact visits;
(7)That X wanted to play ‘puffy’ which the mother was recorded as reporting, amongst other descriptions, meant blowing on the genital area (not demonstrated by X to the mother);
(8)Difficulty with getting X to sleep after visits, with X demonstrating distress;
(9)Regression in toileting; and
(10)Returning from visits with altered levels of consciousness.
X was asked what the father does when changing her nappy. X said “I put my fingers in my bottom with dadda.” While the report initially described that X placed her finger in her anus, and that she lay on her back and lifted her bottom into the air, clarifying answers indicated that while X placed her hand between her buttock cheeks, and although it was not clear what she had done with her hand, X was not observed to have placed her finger into her anus.
The maternal grandmother asserts that when, during the examination of X, the paediatrician asked X, in response to X describing that the father changes her nappy sometimes, what happens next, that X raised her right bottom cheek and put her right index finger into her anus. This was not observed by the reporting doctor.
The maternal grandmother was challenged as to divergence between her account and the GG Hospital report. Despite the hearsay nature of the report, the failure of the attending doctors to observe X placing her finger in her anus, in circumstances where they were interrogating and observing her, undermines the maternal grandmother’s account. I do not accept that X placed her finger in her anus. Noting the evidence of Dr DD set out later, I do not accept that even if X had placed her finger into her anus that this is indicative of sexual abuse being perpetrated upon her.
The GG Hospital report indicated concerns in relation to X having presented to the mother in an altered state of consciousness, querying whether there was access to sedative medications. It further asserted that X’s sexualised behaviours were outside of normal sexual development and gender exploration, including digital penetration of vulva and anus, spreading of her labia and buttock cheeks, licking and blowing on people and objects in a sexualised manner, raising concerns as to possible grooming.
In answering clarifying questions, it was confirmed that sexualised behaviour was not observed at GG Hospital, that normal behaviour includes exploration of ‘holes’ and that the grooming comment would be removed from the report. The answers stated that everything in the report in relation to sexualised behaviour came from the mother.
The report was thereby neutral in effect other than as an interpretation of matters asserted by the mother.
Following the attendance upon GG Hospital the mother made further sexual risk allegations in respect of X.
The mother asserted that X engaged in sexualised behaviour in the following manner on 20 June 2023:
On 20 June 2023, as I was changing [X’s] nappy she said “Don’t put your fingers on my tummy. I put my fingers in Dadda’s mouth.” I did not have my hands near [X’s] tummy at the time. I said “Okay, people don’t touch our mouths, and we don’t let other people put things in our mouths.”[13]
[13] Mother’s affidavit filed 3 October 2023 [13(a)].
It is unclear why the mother attributed a sexualised aspect to this interaction.
On 9 July 2023 the mother asserts:
On 9 July 2023, while bathing [X] on Sunday at about 2.30pm, I asked her “lift up your arms so that I can wash under them.” She did, and I noticed that under her arm looked slightly red, so I gently touched under her arm pit with the tips of my fingers. She pulled her arms down quickly onto her sides and said “No! I don’t like that, I don’t want you to do that!” I stopped immediately and said “Okay baby.” She opened her eyes wide, drew her knees to her chest and curled up. She said “I do that with dadda.” Then she put her hands beneath her legs and held onto her upper thighs near her bottom while pulling her legs and knees apart. She said “I put my hands behind my leg like this with dadda, and dadda has a look!” She said this as she moved her head downwards to look at her vagina closely, while separating her vagina with both hands. I gently removed her hands from her vagina and distracted her by splashing water on her tummy. Mum then came into the bathroom and I asked her if she could take over so that I could compose myself in another room.[14]
[14] Mother’s affidavit filed 3 October 2023 [13(b)].
The maternal grandfather says that the mother told him as follows:
[Ms Growth] then said to [Ms V] and me that “while I was bathing [X] I asked her to raise her arms so she could wash beneath them. [X] became upset when I washed her armpits and [X] clamped her arms down onto her sides. [X] then bent forwards, curled up, raised her knees to her chest, and grasped each of her inner thighs from beneath her legs with her hands. [X] then lent forward and looked down into her crotch area saying words to the effect ‘I put my hands behind my legs like this and dadda has a look’. She then put her hands into her vagina.” [Ms V] and I comforted [Ms Groth]. We were all shocked and distressed at [X’s] disclosure.[15]
[15] Affidavit of Mr W filed 3 October 2023 [17].
The significance of the words and conduct attributed to X, and whether it was indicative of sexual abuse, was the subject of expert evidence, set out in greater detail later. It may however be noted at this stage that the conclusion reached by the mother that the conduct was attributable to the father having abused X was not supported by the primary expert evidence that went to the issue.
The father’s mental health
The mother’s case is that the father’s mental health undermines his capacity to care for X and presents a risk of harm to X.
Issues related to his mental health are best assessed in relation to the expert evidence led in respect of such and set out below, noting that, on the evidence of Mr T, conclusions in respect of the father’s mental health are, at least partly, to be determined on the basis of contested findings of fact in relation to his conduct during the relationship.
Drug and alcohol abuse risk
The mother asserts that a further risk is posed by the father’s prior use of drugs and alcohol, the mother alleging use by the father of such during their relationship.
The parties were in dispute as to the nature and timing of the use of illicit substances by the father, with the focus of their attention being on his use of particular drugs. It was uncontentious that the father used an illicit drugs prior to the relationship, the dispute being as to use during the relationship. It was uncontentious that the father used cannabis both prior to and during the relationship, the dispute being as to degree.
The mother asserted that the father used an illicit drug in the presence of a number of their friends. The mother did not call any of their friends as witnesses. Those called by the father (some of whom were also implicated in drug use by the mother) denied knowledge of his use during the relationship, contradicting the mother’s claims.
At the trial the mother further expanded her account to assert that the father admitted to her a particular occasion of illicit drug use during the relationship, a contention not made in her affidavit that otherwise dealt with that particular incident in some detail.[16]
[16] Transcript 14 November 2023, p. 119 lines 25-38.
The father’s denials, accompanied by the supporting evidence called by the father is sufficient to establish that he did not use the illicit drug during the relationship as alleged by the mother.
That, particularly in the context of hair follicle testing, is sufficient, notwithstanding use of the illicit drug prior to the relationship, to mean that no risk has been demonstrated to arise in relation to the use of that illicit substance.
Both parties used cannabis during the relationship. The mother contended that the father had participated in extensive and compulsive consumption.
The father asserted that he no longer uses cannabis. In support of that contention the father undertook a number of hair follicle tests for drugs. He returned a negative test for marijuana and other illicit drugs on five occasions between 21 April 2021 and 8 February 2022. The tests of 21 April 2021 and 15 June 2023 showed a positive result for opioids, which the father attributed to medication he was given after surgery. This was not the subject of any significant challenge. The other tests taken from 19 October 2021 showed a negative result for opioids.
The mother accepted that while she had previously suggested that the father may have somehow circumvented the hair follicle tests, she now accepts that from the time of the first hair follicle test in early 2021 until the trial he has not been using drugs.[17]
[17] Transcript 14 November 2023, p. 130 lines 11-20.
This was sufficient to support the notion that the father is no longer, and for an extended period, has not consumed cannabis. Those circumstances do not support the notion that the father’s use of cannabis poses a risk in his care of X.
There was a dispute between the parties as to the degree of alcohol consumption by the father during the relationship. The mother accepted that she too had consumed alcohol “on a reasonably frequent basis” during the relationship.[18]
[18] Transcript 14 November 2023, p. 112 line 38-39.
The mother accepted that she had no evidence available to her beyond her testimony as to the degree of use of alcohol by the father during the relationship. This conflicted with her assertion in the prior family violence proceedings conducted in the Magistrates Court that (although she was not then calling them to give evidence) she had many witnesses to the father’s excessive drinking that she could then name.[19] The mother then explained that a lot of those people were the witnesses called by the father in these proceedings. No evidence was elicited from them to support the mother’s contentions.
[19] Transcript 14 November 2023, p. 113 lines 40-46; p. 114 lines 1.
The mother further conceded that her description of the father’s use of alcohol had increased from where she dealt with the issue in the provision of particulars for the family violence proceedings, from there describing “on some evenings he would have a few beers” and “on other occasions he would drink half a bottle of whisky” which then became in these proceedings “drinking beers most nights of the week” and “frequently also consuming half a bottle of whisky in one sitting.” The mother conceded that these appeared to be inconsistent.[20]
[20] Transcript 14 November 2023, p. 128 lines 35-46; p. 129 lines 1-2.
The unsupported and changing nature of the mother’s evidence as to alcohol consumption by the father being of a nature to constitute a risk to X does not establish such a risk, particularly where those witnesses that the mother suggested would support such a conclusion were not supportive of such a claim.
Further undermining the notion that there is a current risk, the father undertook an alcohol consumption test on 10 October 2023 that gave a result of low to moderate consumption.
There should be no conclusion that the father’s use of alcohol is suggestive of a risk of harm to X.
Aggression, abuse and violence
The mother relied upon a number of contentions related to aggression abuse and violence on the part of the father. These spanned alleged physical violence, aggression and abuse by the father during the relationship, and abusive and controlling behaviour following the relationship, including in the manner of his interactions with X and in his conduct of the legal proceedings.
Allegations regarding the relationship
In her trial affidavit the mother alleged that the father became angry, lost his temper, was verbally abusive and physically aggressive when he did not get his way at least once per week. She subsequently described that the physical aggression was that the father “would stand tall and be aggressive.”[21]
[21] Transcript 14 November 2023, p. 147 lines 43-46.
Against this the mother agreed that she had accepted, in the family violence proceedings in the Magistrates Court, in a context where the history of all of the text messages between the parties was made available, that the vast majority of those text messages are positive and loving everyday communications. The mother accepted that the messages contained no threats of violence. She accepted that both she and the father had used profanities, but that she had used them in jest while the father had used them in anger. She asserted that the father was aggressive on occasion.
The transcript of the Magistrates Court proceedings included cross-examination of aspects of the SMS communication between the parties. As identified to the parties during the trial, it was incumbent upon a party seeking to draw something from the transcript that such be identified. Little focus was ultimately placed upon the transcript from the Magistrates Court proceedings.
Transcript was tendered of evidence given in family violence proceedings that were conducted before the Magistrates Court.[22] In those proceedings the mother gave evidence that the only form of violence that had occurred during the relationship was the father throwing a pair of socks at her. She described that she considered that he was angry and she threw a pair of socks at him to “donk him on the top of the head” to make him laugh.[23] The mother said that he picked up the socks, throwing them “very quickly and very hard” and hitting the mother in the throat, which caused her to feel horrified and humiliated and scared at “how quickly he became that violent” and being “actually scared.”[24]
[22] Ex F6.
[23] Ibid p. 15.
[24] Ibid p. 16.
The mother denied that the father was throwing them back to her, saying that he was angry and wanted to hit her hard.
The father described that he had initially thrown the socks back onto the pile in front of the mother, but that after it was thrown back at him, he had had enough and threw them back at her.
This should not be concluded to be an act of violence. Even if a level of annoyance was to be attributed to the father, it is not an incident sufficient to raise any concern that the father represents a risk of violence. It is, however, somewhat difficult to understand why the mother describes her reaction to the incident in such extreme terms.
Further, in relation to the issue of the father presenting a risk of harm, in the Magistrates Court proceedings the mother explained her failure to, and resistance to placing the father’s name on X’s birth certificate was because, she alleges, the father has an association with “some sort of organised crime that they may use the fact that his name is on a birth certificate to compromise [X’s] safety.”[25] To the extent that the mother made such a claim in her evidence, it related to her allegation that the father performed dental work on supposed criminals. It was not a matter pursued at trial, and such risks did not ultimately make it into the matters identified by the mother above as together indicating that the father presents a risk to X’s well-being.
[25] Ibid p. 52.
In these proceedings the mother was cross-examined as to when she formed the view that X should not have a relationship with the father. Taken to her previous evidence in the family violence proceedings she confirmed that she had not formed such an intention at the end of the relationship. In these proceedings she then said that it was from the time of X’s birth that she firmly formed the view that there should be no such relationship.
Given that answer, the mother was again taken back to her evidence in the family violence proceedings when, as of 2021 (five months after X’s birth), her evidence was that she did not know whether she intended the father to have a relationship with X. She conceded that the answers were inconsistent, saying that her earlier evidence should have been that she did not intend for the father to have a relationship with X. That is, the mother’s representation in the Magistrates Court that she had not concluded whether or not X should have a relationship with the father was inaccurate. By that stage, the mother had determined that there should be no relationship.
The mother further claimed in the Magistrates Court proceedings that the father told her that he was a violent child, that his father was violent, that when in confrontation his thoughts turn to violence, and that he considered martial arts moves. She claimed that he said that he wanted to kill and to physically harm a person that he was in business with. There was little pursuit of this in the hearing of this matter. The evidence was not sufficient to consider that violent thoughts, if harboured by the father, either related to X or to the mother, or point to him presenting a risk of harm to the mother or to X.
The mother claimed that in early 2020 the father choked her. She described she was sleeping on the father’s bicep when he, while apparently asleep, bent his arm and she felt it tightening around her throat. The mother described that she tried to remove it but it continued to tighten until she eventually broke free. She accepted that the first appearance of this allegation in her evidence was not until May 2023, and that the allegation had not formed a part of her evidence for the family violence proceedings, nor even in her account to the single expert. She described that her state of mind about the incident at that point was that there was a “question mark” in her mind as to whether the father’s actions were deliberate, but that over time she has come to believe that his actions were deliberate.[26] The mother further explained in her affidavit of June 2023 that there “were so many incidents of family violence and I did not recall this incident until after I had filed the application,” but also accepted that she did not know if the father was asleep at the time, describing that he had been snoring throughout the incident but that she has since wondered whether he was pretending to sleep.
[26] Transcript 14 November 2023, p. 144 lines 4-12.
Again, this incident does not, in its described circumstances, support the notion that the father presents a risk of harm to the mother. Those circumstances appear to have been sufficient that the mother did not conclude that it was a deliberate act of violence until well into these proceedings. It should not be inferred that the father was other than as he presented at the time, asleep.
The mother asserted an incident in early 2020. The mother claims, and the father denies, that he used an illicit drug at a bar. The mother further described that the father became angry at the mother leaving, and that he left with her, “stiffening his upper body, clenched his jaw, flared his nostril and gave me a dark look under his eyebrows and refused to speak to me.” The mother accepted that this was not her initial description of the incident and that she recalled additional details over time.[27] It appeared therefore that the mother’s description of the father that evening has worsened. It is also an event related to his purported use of an illicit drug, an allegation that is rejected. I am unable to accept the mother’s account of this incident.
[27] Transcript 14 November 2023, p. 142 lines 44-45.
The mother says that in late 2020 an incident occurred between herself and the father, that involved the father yelling abuse at her and the mother crying the following day.
The mother says that the father was aggressive toward her in late 2020, when she was concerned that she was miscarrying or going into early labour. She said that when she asked him for help, he punched the bed and told her to lie down.
The father disagreed with the mother’s description of these events, giving evidence that the mother was having stomach pains and he encouraged her to come back to bed and lie down to see if things improved. He denied that he punched the bed, saying that he patted the bed next to him and later dove into the bed in frustration when the mother refused to get back into bed.
The mother asserted in late 2020 that she felt that the father was on the verge of dangerous physical violence. She said at trial that she maintained that view.[28]At trial it was put to her that she had asserted a single act of violence on the part of the father throwing a pair of socks at her. Although this had been her evidence during the previous family violence proceedings in the Magistrates Court,[29] she sought to depart from it at trial, asserting (without then describing) that there had been further instances.[30]
[28] Transcript 13 November 2023, p. 73 lines 31-34.
[29] Ex F6.
[30] Transcript 13 November 2023, p. 73 lines 39-40.
Dr DD was also asked about the risks associated with a child being exposed to high levels of scrutiny in a parent’s household in relation to risk thought to be posed. He considered that hypervigilance, and genuine concern, can result in the parent:
either asks questions or is looking from – for answers for what’s going on in the child’s behaviour. And then the process – the psychological term is confirmatory bias: looks for evidence which then supports the situation. So that then keeps – she keeps finding evidence and asking questions when then keeps feeding the situation.[65]
[65] Transcript 16 November 2023, p. 410 lines 30-35
Further, such concerns were identified by him to have the potential to impact the manner in which a parent views a child’s conduct and comments:
So the more worried you are about these things, every little thing the child does then gets put through that filter.[66]
[66] Transcript 16 November 2023, p. 410 lines 46-47
He was questioned as to the impacts upon a child such as X of such concerns being maintained:
Well, there’s a couple of effects. (1) Is it means that [X] gets exposed to repeated investigations. (2) If you keep asking, if you keep being concerned, keep asking questions of the child, keep trying to understand what’s going on, eventually the child will say things which then become evidence of abuse. And then the parent becomes convinced that the child has been abused. And then, eventually, the child becomes convinced that they’ve been abused. So it then creates, if you like, a belief in the child that they’ve been sexually abused when, in fact, there’s no – nothing has really happened to them. And then, following that sort of belief, in the literature, there is material which then deports the view that it’s not so much the actual abuse, but the belief of the abuse which then impacts them psychologically.[67]
[67] Transcript 16 November 2023, p. 411 lines 4-15.
Dr DD was asked about the significance of sexualised behaviour and of a child’s comments:
... in the age range of under three – zero to three age range, there is much higher frequency across the whole range of – if you like, calling them sexualised behaviour. So children touching themselves, putting fingers in their bottom, things like that, occur at quite a high frequency compared to older age groups.[68]
...
So it’s – there isn’t a, if you like, a singular point where that behaviour then necessarily is indicative of having been sexually abused. The second factor is when kids are distressed – when there is attachment issues, sexualised behaviour increases. So any child who is distressed may show sexualised behaviours, not because of sexual abuse, but because they’re feeling distressed and they find comfort in it.[69]
...
... if you ask a child why something happens, they look for a reason, and Dadda would become a reason for it. But what happens is, developmentally, there’s a concept called source memory. Where did the source of that memory come from? That really doesn’t develop till children are around four, five, six. So the child is really psychologically scrambling to find something to answer the mother with, so saying “Dadda” and looking at Mum’s reaction to what she says is very common in these sorts of cases. So actions then get ascribed to a parent, because the question is asked, “Why are you doing that?” “Dadda” then becomes a response. Then how Mum responds to that then either reinforces the reaction for next time or not.[70]
[68] Transcript 16 November 2023, p. 412 lines 42-55.
[69] Transcript 16 November 2023, p. 413 lines 1-5.
[70] Transcript 16 November 2023, p. 414 lines 17-26.
Dr DD was further asked whether sexual abuse could be excluded as an explanation for X’s described behaviour and comments:
However, that doesn’t – you can’t say that she hasn’t been sexually abused. A possible explanation for what she has said or done might be a trauma explanation, like abuse. Do you agree with that or not? ‑‑‑ I can say from looking at the material that I’ve been provided it’s a very low likelihood. I can’t say that it’s not a possibility, but on the available information, it’s a low likelihood.[71]
...
What I see here doesn’t have, in my opinion, a reflection of trauma in the sort of information the mother is providing in her affidavit. It has more of an attachment feel and a concerned feel but not a trauma feel. So, again, I can’t completely rule it out, but the information the mother has provided is most helpful for someone like myself to go, “I think it’s a very low likelihood that this is a trauma picture.”
...
All right. So they’re two possibilities, and you have a view that you’ve expressed in your report. So the – you can’t exclude it being a trauma-based reaction? ‑‑‑ I can’t exclude it. No.[72]
[71] Transcript 16 November 2023, p. 415 lines 46-47; p. 416 lines 1-3.
[72] Transcript 16 November 2023, p. 416 lines 21-30
The mother rejected Dr DD explanation of X being impacted by the mother’s concerns. The mother asserted that she works “very hard” to shield X from her distress and has systems in place with her sister and parents to ensure that if the mother is overly upset, she leaves the room. She however accepted that it is possible that X is picking up on her anxiety.
The mother maintained that as a “subject matter expert in [X]” that she did not consider that X’s behaviours are related to attachment issues or are normal.
Dr EE
The focus of the evidence given by a psychiatrist, Dr EE, who was appointed as a single expert, was the assessment of the father.
He did not consider that the father poses a risk to X. However, he considered that the father lacks capacity to substantially coparent, meaning that he lacks the capacity to adequately cooperate if the care of X was substantially shared. He also considered that the father has a lack of attunement to X’s developmental needs. This was reliant upon an assessment that the father lacks a “theory of mind” and flexibility. He acknowledged that to have been based on his assessment, material perused and with reliance on Mr T’s assessment of the family’s functioning (itself based on contentious allegations made by the mother). At the time of assessment, he did not consider that the father could exercise overnight care, and recommended that another person be present during his time with X.
Although he had considered that there was no indication as to when the father may have the capacity to care for X overnight, Dr EE recommended that the father continue with the therapeutic intervention that he was undertaking (with Dr CC).
Following assessment of the father Dr EE considered that a provisional diagnosis of mild autism spectrum disorder was warranted. He accepted that this was at odds with subsequent testing undergone by the father with a Dr LL (who was not called to give evidence).
He observed that autism spectrum disorder is a “lifelong neurodevelopmental condition” but also that there are reported lifelong difficulties in the “area of empathy and in the area of interpersonal skills and in the area of lack of flexibility.” Accordingly similar issues arise whether or not the father warrants the formal diagnosis of autism spectrum disorder.
Dr CC
The father attended upon Dr CC on four occasions between December 2021 and February 2022, following a recommendation by Mr T in his first report that the father undertake therapy. Dr CC provided the father with Schema therapy. She assessed him as having displayed significant insight into how his schemas (coping styles) are activated and that he was able to make adaptive coping choices in response. She did not consider that dialectical therapy (as recommended by Mr T) was indicated for the father as she did not consider that there was a basis to consider that the father has a personality disorder. She observed no impact on the father’s parenting capacity associated with his mental health or general emotional well-being.
Dr LL
A report was tendered from Dr LL, a clinical psychologist. He was not called to give evidence. Following the report from Dr EE and recommendations therein the father attended upon Dr LL, who administered tests upon him directed to assessing whether he has autism spectrum disorder. Dr LL considered that he does not have sufficient symptoms to warrant such a diagnosis.
Mr P
The mother has been attending upon a psychologist, Mr P, each fortnight for the year leading up to the final hearing for mental health support. He assessed the mother as highly stressed regarding X’s behaviour, but that despite her distress her scores for depression and anxiety were within normal range. Her more recent scores for anxiety were in the extremely severe and severe range, and for depression in the moderate range.
Mr P repeated descriptions that the mother gave in relation to X.
Mr P described his ongoing role as to assist the mother with supportive counselling to provide her with emotional self-regulation skills, to in turn assist X to cope with the stresses of the current parenting arrangement. He described that the mother understands the importance of her calm and soothing presentation in assisting X to cope, and described the mother as an intelligent, dedicated parent, “doing her best in a situation where she has a reduced capacity to ensure her daughter’s well-being across all environments.”
Mr P further described that the mother diligently applies the instructions and techniques that he has provided to her. He and the mother have worked on techniques to support X, in a context where he describes that it is appropriate for the mother to be hyper aroused given that she has reason to believe that X is at risk of sexual and emotional abuse.
DISCUSSION
The parents are deeply polarised as to the outcome in this case, each seeking that X live with them and spend no or limited time with the other parent. They are also at odds over the allocation of parental responsibility, each seeking that they solely hold it, or in the father’s case as a fall-back position, that they equally share it.
The pivotal issues are interconnected and involve the consideration of risk of harm posed to X by the father, combined with the benefits of meaningful relationship for X with the father, weighed with the benefits of meaningful relationship with the mother and the effects of removal (even temporarily) of either parent from X’s life. These matters, as identified earlier in the judgment do not sit alone, as they interact with other considerations, such as the deficits each party alleges in the parental capacity of the other. These include the mother’s capacity to foster a relationship between X and the father given her settled view that the father presents a risk of harm to X, and limitations in the father’s capacity, whether or not they stem from an autism spectrum disorder. Connected with each of these is consideration of the nature of X’s relationship with each parent and the impact upon X of a change in her circumstances. In the context of their polarised positions, and lack of a co-parenting relationship, the prospect of future litigation is also a live issue.
The mother proposes that a cumulation of factors should lead to a conclusion that the father presents an unacceptable risk of harm to X.
The background to this claim is the allegations made by the mother in respect of the father’s conduct during the relationship.
Having examined with care the evidence as to the relationship between the parents, particularly the allegations made by the mother, I am unable to accept that the father behaved in the manner now asserted by her. In particular, the allegations of violence, threatening conduct and coercive control should be rejected.
That conclusion flows in part from features of the mother’s evidence that undermined the mother’s account of the relationship. One was the manner of giving evidence by the mother, being highly detailed when her evidence supported her cause, but more prone to evasion and haziness when it did not. However, such a feature is common to many cases and, on its own would attract limited weight in assessing the mother’s evidence. More significantly, when the mother’s key contention as to illicit drug use was contradicted by witnesses, further reason emerged to be cautious in respect of her claims as to the relationship. The need for caution was further reinforced by the mother’s resort to either exaggeration or idiosyncratic interpretation of events adverse to the father. Such an approach was seen in her responses to the Child Sexual Behaviour Inventory, in her use of the sock throwing incident, in her unjustified claims in respect of the father’s conduct of the proceedings, and in her recasting of an incident whilst the father slept where her neck was squeezed as she lay in the crook of his arm.
The effect of these matters was to significantly undermine the reliance that could be placed upon the mother’s evidence in relation to the father during the relationship.
Even if the father was considered to be unimpressive in his evidence, the reasons for caution in respect of the mother’s evidence about the relationship mean that her highly critical allegations in respect of the father should not be accepted.
The central component of the mother’s claim as to risk however is the mother’s description of X’s conduct in and around her time with the father. The mother’s (and her family’s) description of this dysregulation were not the subject of the same level of challenge during the proceedings as her evidence about the relationship. Accordingly, the mother’s evidence as to X’s conduct can be largely accepted.
However, the significance that the mother attributed to X’s presentation, being as indicative of a risk of sexual harm from the father, should not be accepted.
While not being able to rule out the possibility of trauma or abuse as a potential cause of behaviour of this nature, the evidence of Dr DD was that this was a low likelihood explanation, that the behaviour was within the range of expected behaviours for a child of X’s age, that the behaviour gave no real support to the allegation of sexual abuse, and that the behaviour appeared more to be related to attachment issues. Given the expertise of Dr DD, and his explanations of the opinions, this evidence should be accepted. The effect is that the descriptions of X lack cogency in demonstrating the father as presenting a risk.
Even if, due to the inability to exclude trauma as a possible explanation, this leaves any lingering concern, such concerns are comprehensively answered by the simple fact that X has been the subject of supervision whenever in her father’s care. The possibility of abuse is answered by this evidence, given both by the father and various supervisors, while the evidence of X’s behaviour does not act as any significant contradiction of it. The evidence in respect of supervision provides a compelling basis for concluding that the father has not abused X.
In terms of sexual abuse risk, it may be concluded both that the father has not engaged in such abuse, and that he poses no risk of such abuse.
The conclusion reached above, rejecting the mother’s serious allegations about the relationship, has a flow on effect when consideration is given to the opinions of both Mr T and of Dr EE (to the extent that his opinions relied upon Mr T’s) given about the father. Accepting that concerns were raised given the father’s manner of response to psychometric testing, the differential views of Mr T were expressed by him to turn on whether the mother’s account of the relationship was accurate. It was not. The effect of such an assessment was that it opens the door for progression to overnight and unsupervised time, the issues of risk abating.
Although Dr EE was reliant upon Mr T’s assessment, he observed that whether or not a diagnosis of Autism Spectrum Disorder was warranted, the father has demonstrated long term interpersonal struggles, which may be taken to impact upon his parenting capacity.
It may be concluded that there are aspects of the father’s makeup that will impact on his capacity as a parent, but not to such a degree as to undermine a move to unsupervised and overnight time. This is particularly so when it is considered that the father has a demonstrated willingness to obtain relevant advice and support, including in relation to supporting X through changed arrangements, as seen in his interactions with Dr U.
Although the father was criticised for pursuing a primary position of X moving into his care, a result likely to be traumatic to X as discussed further below, it may be observed that this position was one adopted with some apparent reluctance in the face of the mother’s settled opposition to X having a relationship with the father.
Considering further Mr T’s assessment of the nature of the relationship that has developed between X and the father, and his observations of the importance of such a relationship for X in terms of her ongoing development, in the absence of unacceptable risk it may be concluded that there are strong benefits for X to enjoy from meaningful relationship with the father that will be fostered through a move to unsupervised overnight time.
The father contends that the mother’s opposition to his relationship with X is such that the relationship and those corresponding benefits can only be enjoyed if X is to live with the father and there be a moratorium on her time with the mother for a period.
It can only be anticipated that the mother will continue, despite this judgment, to harbour a view that the father presents an unacceptable risk to X. Although the mother contends that she will comply with orders, the likelihood is that this would be done through an enduring conviction that the father presents risk to X, including sexual risk. Given that view, there can be no expectation that the mother will genuinely support the relationship between X and the father.
Dr DD described the potential mechanisms that may flow from a parent harbouring such suspicion. In this case that could include the potential for X being subjected to ongoing scrutiny from the mother and her family and a lack of objectivity in considering what X may say or do. There is ongoing risk that X’s actions will be viewed by the mother through the lens of conviction that the father has sexually abused X. As noted by Dr DD this carries with it the potential for adverse impact upon a child such as X.
It should be concluded that X is at risk of such mechanisms, and of the undermining of her relationship with her father should she continue to live with the mother.
However, given the nature of the relationship between X and the mother, the mother having always been X’s primary carer, within a broader context of the close care provided by X’s extended family, the removal of X from her mother, at this stage, would likely inflict trauma upon X. The evidence of Mr T as to the likelihood of such an outcome, and its impact on X should be accepted.
X would, if a change in residence was effected at this stage, experience immediate and potentially ongoing trauma. Further, despite access to appropriate advice, and despite his genuine commitment to do so, in the context of a currently limited relationship with X and his own limitations, it may be expected that the father would struggle to adequately support X through such trauma.
This leaves a position where X is not at an unacceptable risk in the care of her father, where there are strong benefits to a meaningful relationship with him, where that relationship and those benefits are at risk if she remains in the mother’s care, but that she faces trauma if removed from the care of her mother who, otherwise, generally provides appropriate care for X.
The resolution of those tensions lies in adopting the approach similar to that recommended by Mr T, and adopted by the ICL and largely adopted by the father as part of his fall-back position.
This approach incorporates a period of time remaining under supervision in the father’s care before transition to unsupervised time, allowing a development of X’s communication skills in that time. A further transition to overnight time will take place after X has commenced school and has had some time to adjust to the separation from the mother that will be necessitated by her attendance at school.
It should however be clear that further supervision is not necessitated by a risk posed by the father. Rather it is protective of X, who may face intense scrutiny in the mother’s household. A period of supervision, at least rationally, reduces the occasion for micro scrutiny of X by the mother’s household, and allows X time to develop her own communication skills. Further, it acts as a strong answer to further allegations that may arise in the short-term future by virtue of such micro scrutiny. Given the lack of risk it is neither necessary that the supervision be professional, nor that it be duplicated as is the case under the current interim orders, nor that it be more than a generalised supervision. Nor does there seem to be a pressing reason that it extend beyond when X is due to commence school.
The allocation of parental responsibility presents strong challenges. Each parent pursues as their primary position that they hold sole parental responsibility, whilst the ICL supports the mother having sole parental responsibility. By the father’s fall-back position, where orders are to be made that provide for X to live with the mother but spend time with him, he seeks the sharing of that responsibility.
Section 65DAC provides a mandatory requirement that where parental responsibility is shared, decisions about major long-term issues are to be taken jointly and the parents are required to consult and make a genuine effort to come to a joint decision.
The nature of the relationship between these parents means that each of those requirements places a burden upon them that they will struggle to comply with, particularly given the mother’s settled but erroneous view that the father presents an ongoing risk to X, and the father’s limitations as considered by Dr EE.
The alternatives, however, carry their own problems.
It is difficult to see how reposing long-term decision making in the father alone while X resides primarily with the mother, and while the parties do not have a co-parenting relationship, will be beneficial to X.
Given the mother’s fixed position in respect of the father, it cannot be expected that long term decisions would be made by her that would reflect support of X’s relationship with her father. Long term decisions as to the school X may attend, her involvement in religious and cultural practices, and for example, the nature of therapy undertaken can only be expected to be taken through the lens that the father presents an unacceptable risk.
There is no good solution to these tensions.
On balance, an order for the equal sharing of parental responsibility is the best protection that can be given to X to allow decisions that adequately take into account her circumstances including her relationships with both parents.
This determination is made with recognition of the difficulties these parties face in making joint long-term decisions. The decisions that will fall within such a category may be anticipated to be limited, reducing the need for interaction. It should also be recognised that an inability to make such decisions may result in further litigation. However, even in the face of potential conflict and stress, such an outcome remains the best protection for X.
This last point illustrates the potential for further litigation.
It should be acknowledged that given the mother’s fixed position with respect to the father that the threat of further litigation looms large on X spending unsupervised and overnight time with the father. However, it is difficult to identify an outcome that would avoid future litigation other than the exclusion of a parent from X’s life. Depriving X of the involvement of a parent who presents no unacceptable risk, and with whom there are significant benefits flowing from meaningful relationship, is too high a price to pay to reduce the prospect of further litigation.
A last issue that arose was as to X’s name. The father’s application was that X’s surname be changed to Nayar-Groth, a change that was opposed by the mother. As identified by the parties, this issue is to be determined based on X’s best interests.
The parties identified that consideration should be given to whether the change in name would cause confusion, or practical difficulty for X, noting that until now X, who is currently 3 years old has been known as Groth. Presumably various records, medical and educational have been accumulated in that name and a change in name carries with it potential disruption to such. X is acknowledged by her parents to be bright, and may be at a stage where she is already familiar with her name being Groth, and that being the same as the members of her household. The change to her name does not, however, at this stage of X’s life appear likely to cause any significant confusion to her.
The mother further points to a potentially corrosive effect upon her and her parenting of X bearing the name of the father given the violence she alleged against him. Given the determination of those issues, this does not arise.
The key issue raised by the father in support of his application was that of identity. He submits that, in the face of the mother’s desire to exclude him from X’s life, as exemplified in these proceedings, X sharing his name is supportive of her connection with the father, his family and culture.
In a similar vein, in Valone & Sambrook [2010] FamCA 428 Murphy J observed, in the context of a high conflict case, the potential significance of a child bearing both parents’ names:
Their names, particularly given the extremely high conflict between the parents, are an overt symbol of the fact that they have two parents who seek to love and care for them and with whom they are connected, not only by birth, but by rights and obligations enshrined in the Act.
Acknowledging that each case turns upon its own facts, such matters can be seen to form a legitimate consideration.
Given the sharing of parental responsibility, progression into shared time with both parents, anticipated involvement by the father in all aspects of X’s life, and the mother’s deep resistance to the father’s involvement, changing X’s surname to Nayar-Groth is supportive of X’s identity and connection with the father in a manner that does not carry with it any significant detriments, and that accords with X’s best interests.
The father’s application to change X’s surname should be granted.
CONCLUSION
Orders will be made providing for the equal sharing of parental responsibility, and for X to live primarily with her mother.
Orders will be made for X to spend gradually increasing time in the father’s care. While initially this will be supervised, the requirement for such supervision will allow the father to nominate supervisors of his choice, provided he keeps a record of who supervises. The requirement for supervision will not require constant line of sight, nor even that the supervisor always be in the same room as X, provided that the supervisor is generally in X’s presence. Given that the purpose of supervision is not to protect X from the father, but rather to give less reason for scrutiny in the mother’s household, no greater burden than such should be imposed.
The orders will provide for gradual increases in X’s time, culminating in regular overnight time twice each fortnight, to allow X to best enjoy the benefits of relationship with the father. In accordance with the recommendations of Mr T, overnight time will not occur until X is settled in kindergarten and more accustomed to lengthier and regular time away from the mother. Given this purpose of the delay in overnight time it is not necessary that this be deferred until the end of kindergarten, but can be scheduled to take place midway through that year. The duration of the time with the father will continue to increase until it settles at overnight time twice each fortnight, allowing frequent interaction between X and the father and full involvement by the father in the various aspects of X’s life.
Similarly, school holiday time will gradually increase.
Provision will be made for special days, that will include provision for X to spend time with the mother on Christmas day, and the father for a religious holiday, in order for X to have the benefit of the diverse culture of her parents.
Handover arrangements will preference those that will not see the parties needing to interact, but with a fall-back position should the regular mechanisms not be available and the parties not agree otherwise.
The parties will be at liberty to vary arrangements by written agreement, although it may be anticipated that they will struggle to find a common mind about changes.
X will not be permitted to travel overseas without the agreement of both parties or an order of the court for a period of five years.
Both parents will be entitled to information concerning medical and educational issues.
Orders will be made to effect a change in surname for X from Groth to Nayar-Groth.
Orders will be made, as sought by the ICL, for the parties to share the ICL’s costs. It may be observed that the allowance claimed by the ICL can only be considered extremely modest given the work involved, and is reflective of the vast gulf between Legal Aid and private rates.
I certify that the preceding three hundred and seventy-one (371) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 18 March 2024
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