Nelke and Gemmell
[2012] FMCAfam 867
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NELKE & GEMMELL | [2012] FMCAfam 867 |
| FAMILY LAW – Children – mother in NSW – father and child in Tasmania – whether father moved without mother’s knowledge or consent – whether father seriously assaulted or imprisoned the mother – mother’s subsequent travel to Tasmania – credibility of parties and witnesses – expert opinions and reports - best interests of child. |
| Family Law Act 1976 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA Evidence Act 1995 (Cth) s.140 |
| Bolitho and Cohen (2005) FLC 93-224 Briginshaw v Briginshaw (1938) 60 CLR 336 Carpenter and Lunn (2008) FLC 93-382 Chappell and Chappell (2008) FLC 93-377 Helton v Allen (1940) 63 CLR 691 Mills & Watson [2008] FMCAfam 2 MRR v GR (2010) FLC 93-424 Reifek v McElroy (1965) 112 CLR 517 Wainder & Wainder (2011) FLC 93-473 |
| Applicant: | MS NELKE |
| Respondent: | MR GEMMELL |
| File Number: | PAC 5297 of 2010 |
| Judgment of: | Roberts FM |
| Hearing dates: | 8, 9, 22 & 23 September 2011 and 28, 29 & 30 November 2011 |
| Date of Last Submission: | 30 November 2011 |
| Delivered at: | Launceston |
| Delivered on: | 22 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr W Griffiths |
| Solicitors for the Applicant: | Adams & Partners Lawyers |
| Counsel for the Respondent: | Mr D Walker |
| Solicitors for the Respondent: | David Walker & Co. |
| Counsel for the Independent Child’s Lawyer: | Mr P Fitzgerald |
| Solicitors for the Independent Child’s Lawyer: | Legal Aid Commission of Tasmania |
ORDERS
That MR GEMMELL (“the father”) and MS NELKE (“the mother”) have equal shared parental responsibility for X born (omitted) 2008 (“the child”)
That the child is to live with the father.
That the child is to communicate with the mother by telephone (or by Skype if available to the parties) as may be agreed between the parties but in default of agreement at least twice per week on Tuesdays and Thursdays between the hours of 5.00 p.m. and 6.00 p.m., with the father to initiate the call to the mother on Tuesday and the mother to initiate the call to the father on Thursday
That until the start of the first term in the 2013 Tasmanian school year the child is to spend time with the mother as follows:
(a)in Sydney in September 2012 and in November 2012 for periods of five (5) nights on dates to be agreed between the parties, but in default of agreement for five (5) nights commencing on the last Wednesday of those months;
(b)in Sydney at Christmas in 2012 for a period of seven (7) nights on dates to be agreed between the parties but in default of agreement commencing on 21 December 2012;
(c)in Sydney for one further period of seven (7) nights prior to the start of the Tasmanian 2013 school year on dates to be agreed but in default of agreement commencing on 20 January 2013; and
(d)at other times as may be agreed between the parties.
That commencing in 2013 the child is to spend time with the mother as follows:
(a)in Sydney on one occasion during each school term from Friday until Sunday on dates to be agreed between the parties, but in default of agreement as nominated by the father;
(b)in Sydney during the Tasmanian long summer school holidays for periods of up to five (5) weeks as agreed between the parties, but in default of agreement commencing on 28 December in odd numbered years and on 21 December in even numbered years;.
(c)in Sydney for half of all other Tasmanian gazetted term school holidays on dates to be agreed between the parties but in default of agreement for the for the first half in even numbered years and the second half in odd numbered years.
(d)at other times as may be agreed between the parties.
That until the child is able to travel by air as an unaccompanied minor:
(a)the father shall accompany the child between Launceston and Sydney;
(b)the father shall pay for his own return air travel between Launceston and Sydney; and
(c)the mother shall pay for the child’s return air travel between Launceston and Sydney;
(d)the father shall deliver the child to the mother’s residence at the start of the child’s time with the mother; and
(e)the mother shall deliver the child to the father at the paternal grandmother’s residence at the end of the child’s time with the mother.
That upon the child being able to travel as an unaccompanied minor;
(a)the mother shall book and pay for the child’s air travel from Launceston to Sydney at the start of the child’s time with the mother;
(b)the father shall book and pay for the child’s air travel from Sydney to Launceston at the end of the child’s time with the mother;
(c)the father shall deliver the child to Launceston airport in time to catch the relevant flight at the start of the child’s time with the mother; and.
(d)the mother shall deliver the child to Sydney airport in time to catch the relevant flight at the end of the child’s time with the mother.
That for the purposes of the child’s travel between Launceston and Sydney or return, the parent making any booking must notify the other of that booking at least fourteen (14) days in advance of the scheduled travel.
That the father must make all necessary arrangements to authorise the child’s school to provide the mother with all documents that a parent would normally be entitled to receive.
That the father must take all necessary steps and sign all necessary documents to enable the mother to have access to all of the child’s medical records.
That the mother and father must as soon as is reasonably practicable notify the other parent in the event of any medical emergency involving the child.
That each parent must at all times keep the other parent notified of his/her address and contact telephone number.
That the mother and father are to communicate by email, sms or telephone in relation to issues involving to the child.
That in the event of either parent travelling with the child for a period of more than three nights, the parent travelling must provide the other parent with not less than 21 days notice of any such travel and shall provide the other parent with an itinerary detailing such travel arrangements.
IT IS NOTED that publication of this judgment under the pseudonym Nelke & Gemmell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
PAC 5297 of 2010
| MS NELKE |
Applicant
And
| MR GEMMELL |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is MS NELKE (“the mother”) and the respondent is MR GEMMELL (“the father”). Their dispute is essentially about whether their daughter X born (omitted) 2008 (“the child”) should live predominantly with the mother or with the father.
Because the evidence of the mother and the father was so divergent in relation to some very significant factual matters, it is not difficult to understand why one of the expert witnesses, a consultant psychiatrist, said the following:
It is unavoidable to reach the conclusion that at least one of the parties in this matter is an accomplished liar. In the interests of the child it is important to determine to which of the parties that description most closely applies. [1]
[1] At page 19 of his report
Procedural history
On 4 November 2010 the mother filed an urgent application in the Parramatta Registry of this Court. Inter alia, she sought orders that the matter be heard on an ex parte basis and that the father “return” the child to her by 5.00 p.m. on the following day. She also sought a Recovery Order if the father failed to “return” the child as ordered.
On the same day Federal Magistrate Henderson made orders on an ex parte basis that the father attend at the Parramatta Registry on the following day and bring the child with him. He was also injuncted from removing the child from New South Wales (“NSW”) pending further order.
The Court record shows that on 4 and 5 November 2010 the mother was represented by the lawyer who prepared her first affidavit.
On 5 November 2010 the father was assisted by a duty lawyer when Federal Magistrate Henderson dismissed the mother’s application for a Recovery Order and transferred the proceedings to the Launceston Registry of this Court. She also made interim orders for equal shared parental responsibility and for the child to continue living with the father. In short, the father was permitted to return to Tasmania with the child.
When the matter came before me on 29 November 2010, orders were made for the appointment of an Independent Child’s Lawyer (“ICL”) and for the father to file responding material.
On 1 March 2011 orders were made by consent for the appointment of Mr J (“the psychologist”) to be appointed as a Court Expert to provide a report. His report was released on 6 April 2011 (“the psychologist’s report”) and I will refer to it in more detail below.
On 2 May 2011 orders were made which provided for a copy of the psychologist’s report to be released to Dr R (“the psychiatrist”) for the purposes of a psychiatric assessment of the father. Orders were also made for the mother to be able to provide the psychiatrist with any “historical or factual background for the report” and the psychiatrist was permitted to view any affidavit material and released subpoena material.
On 2 May 2011 the matter was also adjourned for a final hearing in Launceston commencing on 8 September 2011 “noting a time estimate of 2 days”. The Court record shows that on 2 May 2011 the parents and the ICL were all represented by lawyers.[2]
[2] Indeed, counsel for the father and counsel for the ICL on 2 May 2011 were the same counsel who represented them at the final hearing.
On 28 July 2011 further orders were made by consent for the appointment of Dr V (“the Family Consultant”) as an expert to report upon the mother’s living situation in New South Wales. Her report was released on 30 August 2011.
On 25 August 2011 the father filed an Application in a Case seeking parentage testing orders in relation to the mother’s second child born (omitted) 2011 (‘the second child”). The mother filed a Response to that on 31 August 2011. However, on the first day of the hearing I was told that the father was not seeking to have his application for parentage testing heard at the same time as the substantive proceedings. It was said by counsel for the ICL that the Court has no jurisdiction to hear the parentage testing issue, so for the time being the father’s Application in a Case remains “in limbo”.
It is now a matter of history that the time estimate of two days for the hearing of the parties’ competing substantive applications was woefully inadequate. In fact, the matter was heard over seven days in three separate sittings of the Court. It is my view that the lawyers involved on 2 May 2011 (when the time estimate was given) must all share some of the responsibility for that woeful time estimate. Indeed, if I had known then that the hearing was likely to exceed four days, I would have transferred this matter to the Family Court of Australia pursuant to the protocol entered into between the Chief Justice of the Family Court of Australia and the Chief Federal Magistrate.
By the end of the seven day hearing, the mother was seeking orders as follows:
1. That the child … shall live with the mother.
2. That the mother and father shall be allocated equal shared parental responsibility for the child. [3]
[3] At the start of the hearing, the mother was seeking an order that she have sole parental responsibility.
3. That the father shall return the child … to the mother by delivering the child to the food court in the (omitted) shopping centre or other agreed public place at a time and date to be determined between the parties depending upon flight times and other such travel arrangements but no later than 5.00pm on the date that falls two weeks from the date of these orders, whichever may be the latter.
4. That until such time as [the child] commences primary schooling, [she] shall spend time with the father as follows:
a. From 10.00am until 5.00pm on up to seven days each month, with such time not to include overnight time and for the purpose of such time the father is to advise the mother with no less than 14 days notice of the dates on which he intends to spend time with X.
b. From 10.00am until 5.00pm on Father’s day.
c. From 10.00am until 5.00pm on Christmas Eve.
d. From 10.00am until 5.00pm on the father’s birthday.
e. From 10.00am until 2.00pm on [the child]’s birthday.
5. That for the purposes of the father’s time pursuant to order 4, such time shall not occur on the following dates and the child shall live with the mother on the following dates:
a. On Mother’s Day
b. On the Mother’s birthday.
c. From 2.00pm onwards on X’s birthday, unless otherwise agreed.
d. On Christmas Day.
e. On Easter Saturday and Easter Sunday.
f. On [the child]s half brother’s birthday being (omitted).
6. That for the purpose of the father’s time with [the child] pursuant to order 4, unless otherwise agreed changeover shall occur at the food court of the (omitted) Shopping Centre.
7. That upon such time as X commences primary schooling, [the child] shall spend time with the father as follows:
a. Should the father remain living in Tasmania, for up to two weekends during each New South Wales School term from 10.00am Saturday until 4.00pm Sunday with such time to be spent in New South Wales unless otherwise agreed, and for the purpose of such time the father is to advise the mother with no less than 14 days notice of the dates on which he intends to spend time with [the child].
b. Should the father return to live in the Sydney Metropolitan area, each alternate weekend during each New South Wales School term from 10.00am Saturday until 4.00pm Sunday.
c. Unless otherwise agreed, from 10.00am the first Saturday of the school holidays until 5.00pm the following Saturday during each New South Wales School holiday period (excluding the Christmas school holiday period)
d. Unless otherwise agreed, during the New South Wales Christmas school holiday period from 10.00am on 28 December until 10.00am on 17 January the following year.
e. From 10.00am until 5.00pm on Father’s day.
f. From 10.00am until 5.00pm on Christmas Eve.
g. From 10.00am until 5.00pm on the father’s birthday if it falls on a non-school day.
h. From the conclusion of school until 5.00pm on the father’s birthday if it falls on a weekday.
i. From 10.00am until 2.00pm on [the child]’s birthday if it falls on a non-school day.
j. From the conclusion of school until 5.00pm on [the child]’s birthday if it falls on a weekday.
8. That for the purposes of the father’s time pursuant to order 7, such time shall not occur on the following dates and the child shall live with the mother on the following dates:
a. On Mother’s Day
b. On the Mother’s birthday.
c. From 2.00pm onwards on [the child]’s birthday if such birthday falls on a non-school day, and 5.00pm onwards if such birthday falls on a school day.
d. From 5.00pm on Christmas Eve until 10.00am Boxing Day.
e. From 5.00pm on Good Friday until 5.00pm on Easter Sunday.
f. On [the child]’s half brother’s birthday being (omitted).
9. That the parties shall be restrained from referring to, or encouraging [the child] to refer to, any third party as “mum” or “dad” or variants thereof.
10. That the father shall be at liberty to communicate with [the child] by telephone on a nominated number between 6.30pm and 7.00pm on each day he does not otherwise spend time with [the child].
11. That the parties are restrained from physically disciplining [the child] or allowing any third party to physically discipline [the child].
12. That the parties are restrained from denigrating one another, or allowing any third party to denigrate the other party, in the presence or hearing of [the child].
13. That in the event of [the child] suffering a medical emergency requiring medical attention while spending time with or living with either parent
a. The other parent is to be notified as soon as practicable.
b. The other parent is to be provided with the full details of the practitioner or medical facility upon which [the child] attends as soon as practicable.
c. The medical practitioner or medical facility be advised that the other parent has access to [the child]’s medical records and the information obtained with them upon request.
14. That the mother shall make any necessary arrangements at [the child]’s schools to ensure the father can obtain the following information and documents at his own cost:
a. A copy of all school reports.
b. Notification for school activities that parents are invited to or ordinarily entitled to attend that he may decide to attend.
c. Notification of parent/teacher nights and the school is informed that it is the father’s desire to attend such events, noting that there is no requirement that the parties attend such events simultaneously together.
d. In the event of [the child] being taken from the school for an emergency, remedial or correctional treatment that the father be informed as soon as practicable.
15. That the parties are restrained from relocating the child’s ordinary place of residence outside the Sydney Metropolitan region, unless agreed between the parties in writing.
16. That the father shall be at liberty to send birthday, Christmas and other special occasion gifts and cards to [the child] by post and the mother shall provide same to [the child] unopened.
17. That the parties shall communicate by way of email in relation to all non-urgent issues concerning [the child].
The orders sought by the father were:
1. The father … and the mother … have equal shared parental responsibility for the child ….
2. The child live with the father.
3. Until the child commences school she shall spend time with and communicate with the mother as follows:
a. Commencing in September 2011 and on one occasion every second month thereafter in Sydney, New South Wales for a period of 5 nights at dates and times to be agreed between the parties and in default of agreement for 5 nights commencing on the last Wednesday of each month;
b. At Christmas in 2011 for a period of 7 nights at dates and times to be agreed between the parties and in default of agreement for 7 nights commencing 21 December 2011;
c. By telephone or skype if available to the parties each Tuesday and Thursday between the hours of 5pm and 6pm with the father placing the call to the mother on Tuesday and the mother placing the call to the father on Thursday.
d. By telephone on Mother’s Day if in the care of the father between the hours of 5pm and 6pm.
e. At all other times as agreed between the parties.
4. Upon the child commencing school she shall spend time with and communicate with the mother as follows:
a. On one occasion every second month in Sydney, New South Wales from Friday until Sunday at dates and times to be agreed between the parties and in default of agreement commencing on the last Friday of each month;
b. Excluding Christmas, for half of all Tasmanian gazetted school holidays at dates and times to be agreed between the parties and in default of agreement for the for the first half in odd numbered years and the second half in even numbered years.
c. At Christmas in 2011 and each alternate year thereafter commencing no earlier than 27 December for a period of 5 weeks at dates and times to be agreed between the parties and in default of agreement from 28 December for a period of 5 weeks.
d. By telephone or skype if available to the parties each Tuesday and Thursday between the hours of 5pm and 6pm with the father placing the call to the mother on Tuesday and the mother placing the call to the father on Thursday.
e. At all other times as agreed between the parties.
5. Until the child is able to travel as an unaccompanied minor the father shall pay for his travel and shall accompany the child to and from Tasmania to Sydney New South Wales at the commencement and conclusion of the mother’s time.
6. Until the child is able to travel as an unaccompanied minor the mother shall pay for the child’s return travel to and from Tasmania.
7. Until the child is able to travel as an unaccompanied minor the father shall deliver the child to the mother’s residence at the commencement of the mother’s time.
8. Until the child is able to travel as an unaccompanied minor the mother shall return the child to the maternal grandmother’s residence at the conclusion of the mother’s time.
9. Upon the child being able to travel as an unaccompanied minor the father shall pay for her travel from Launceston in Tasmania to Sydney in New South Wales and the mother shall pay for the child’s return travel from Sydney in New South Wales to Launceston in Tasmania.
10. The father shall arrange for and pay to transport the child to Launceston airport at the commencement of the mother’s time.
11. The mother shall arrange for and pay to transport the child to Sydney airport at the conclusion of the mother’s time.
12. The father shall make the necessary arrangements and sign all such authorities at the child’s school to authorise the school to provide the mother with all school reports.
13. The father shall make the necessary arrangements and sign all such authorities authorising the mother access to all of the child’s medical records.
14. The mother and father shall notify the other parent as soon as reasonably practical in the event of a medical emergency relating to the child.
15. The mother and father communicate by email, sms or telephone in relation to issues pertaining to the child.
16. In the event that the mother or father travels with the child that parent must provide the other parent with not less than 21 days notice of any such travel and shall provide the other parent with an itinerary detailing such travel arrangements.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[4]
[4] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [5]
[5] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[6]
[6] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[7]
[7] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[8]
[8] Subsection 60CC(3)
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child, or in family violence. [9] The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[10]
[9] Section 61DA
[10] Subsection 61DA(4)
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[11]
[11] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[12]
[12] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[13] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[14] made it clear that if it is not open to a Court to find that it is reasonably practicable, within the meaning of s 65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a Court to consider making an order as described in s 65DAA(1)(c). [15]
[13] (2010) FLC 93-424
[14] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[15] Also see Wainder & Wainder (2011) FLC 93-473
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[16]
[16] See Bolitho and Cohen (2005) FLC 93-224
The evidence
In addition to two of her own affidavits, the mother relied upon the affidavit evidence of:
·her brother (‘the mother’s brother”); and
·her partner (“Mr S”).[17]
[17] Mr S’s affidavit was not filed until a week after the hearing had started.
The father relied upon his own affidavit filed 18 August 2011, as well as those of:
·Ms M (“Ms M”);
·his aunt, Ms H (“Ms H”);
·a friend, Ms N (“Ms N”); and
·Dr R (“the psychiatrist”).
Reports from the two court experts (the psychologist and the Family Consultant) were received into evidence.
With the exception of Ms M, the parties, their witnesses and the court experts were all cross-examined. I will refer below to the reasons why Ms M did not give oral evidence.
Brief background
Where I refer to any fact in these Reasons, it should be regarded as a finding of fact unless a contrary intention is clear from the context.
The father and the mother were both born in (omitted) 1990, so they are now nearly 22 years old. They commenced a relationship in New South Wales at the end of 2006, and in mid-2007 they started living together when they were only 16 years old. They were each only 17 years old when the child was born.
The parties separated in late February 2010. At that time, the child remained living with the father. I will refer to the circumstances of their separation in greater detail below.
In late May or early June 2010 the father moved to Tasmania with the child.
The mother visited Tasmania in October 2010 and stayed in the same residence as the father and the child for nearly a week.
The father visited NSW in November 2010 (to attend his mother’s wedding) and it was at that time that the mother commenced these proceedings as set out above.
At the time of that hearing, the mother was living in NSW with Mr S and her second child (born on (omitted) 2011). The father was living in Tasmania with the child.
Credit
The mother alleges significant violence and sexual assaults upon her by the father, and she also alleges that the child has suffered abuse at the hands of the father. The father denies the mother’s allegations almost entirely, so it is clear that the Court needs to determine which version is the more truthful.
In general, I found both parties to be unsatisfactory witnesses for the reasons set out below.
My assessment of the mother’s evidence
There were numerous inconsistencies in the mother’s own evidence at different times, but there were also inconsistencies between her evidence and the evidence of others. I will set out some examples below.
At paragraph 19 of her second affidavit, the mother said:
In late May 2010 [the father] relocated with [the child] to Tasmania without consulting me. [The father] telephoned me in May 2010 and said to me words to the effect “I’m going to Tasmania with [the child] and you won’t see her”. I said “Please don’t go”. [The father] replied words to the effect “I’ll think about it but I already bought my ticket”. The next time I spoke to [the father] he had left for Tasmania. [18]
[18] Essentially that repeated what she had said in her first affidavit.
Although that account differs from the account that she gave to the psychologist, she clearly meant to convey to the psychologist the impression that the father’s departure for Tasmania was not only without her consent, it had also occurred without her knowledge. In that regard, the psychologist reported at paragraph 25 of his report:
[The mother] said she never gave consent for [the father] to relocate to Tasmania. She said he asked her if she could understand why he might want to leave the state. She thought he was talking hypothetically and indicated she could understand, but this was not intended to show support for that proposal. After no communication with [the father] for some time she asked her sister to drive past his house to find it vacated. Only then, in June 2010, did she discover he had moved to Tasmania.
However, it is clear from the cross-examination of the mother and from Exhibit “F1” that on 24 May 2010 the mother had sent a Facebook message to the father which said in part:
so what time are you leaving tomorrow
The father queried why she wanted to know that, and she replied:
And I told you twice I want to know whats going on, what time youre leaving tomorrow? i want to know coz ur taking my daughter .. der
After that the mother asked about the cost of the father’s plane ticket, and the father asked why she wanted to know that. The mother responded:
im curious for when I visit
The mother gave some evidence in cross-examination that she thought that the father was planning to take the child overseas (even to Canada),[19] but that oral evidence strained her credibility even further in the light of the father saying in the Facebook conversation that his airfares, including “luggage extra’s and stuff” had cost him only $130.
[19] Transcript: Day 2 at page 131
That Facebook “conversation” shows me very clearly that the mother was not only aware on 24 May 2010 of the father’s plan to take the child to live in Tasmania, but she was also planning to visit them. I find that her subsequent affidavit evidence of 4 November 2010 and 15 August 2011, and the account given by her to the psychologist on 15 March 2011 were all designed to be misleading.
In paragraph 34 of her first affidavit, the mother had said:
I also continue to have nightmares and be terrified of [the father] particular (sic) as when I went to Tasmania to check on [the child] in October 2010, [the father] tried to stop me from leaving by telling me my flight for at a different time. I managed to get the flight still as it was running late but I believe [the father] was trying to trap me in Tasmania and that is why I did not feel I could try to take [the child] back from him.
In paragraph 38 of her second affidavit, she changed and expanded upon that. The added words appear in bold below.
I also continue to have nightmares and be terrified of [the father] particular as when I went to Tasmania to check on [the child] in October 2010, [the father] tried to stop me from leaving by telling the a friend of [the father]’s who was giving me a lift to the airport that my flight was for a different time. I do not know who this person was but assume he was a friend of [the father]’s because of the way he spoke as he said words to the effect “I’ve had sex with both the girls in this car”. I managed to get the flight still as it was running late but I believe [the father] was trying to trap me in Tasmania and that is why I did not feel I could try to take [the child] back from him.
I find that in those paragraphs the mother was fabricating a scenario in order to portray the father in a bad light. I say that because of what follows below.
The father’s witness, Ms N, had given the mother a lift to the airport on the day in question. She[20] said the following in the last paragraph of her affidavit:
[The father] asked me if I could take [the mother] to the airport. I saw [the mother] check the ticket and read out the time to me so that I could work out when I needed to leave. [The mother] made the mistake with the flight time not [the father]. [The mother] nearly missed her flight as she had made a mistake when checking the flight departure time. I drove [the mother] to the Airport.
[20] Not “he”, as stated in the mother’s second affidavit.
Ms N gave oral evidence on Day 5, but she was not cross-examined about that incident. Indeed, she was not asked any questions about any part of her affidavit by the mother’s counsel. That was not surprising because the mother had admitted in cross-examination on Day 1 that she was well aware of the flight time. In that regard, the following exchange had taken place:[21]
[21] Transcript: Day 1 at pages 28 and 29
Mr Walker: So you were well aware of your flight times because it was your document?
The mother: Yes.
Mr Walker: You knew your flight times?
The mother: Yes, I did know my flight times, yes.
Mr Walker: And you had a document with your flight times on it with you in your bag?
The mother: I was reading my ticket, but yes.
Mr Walker: Yes. And you had your ticket as well?
The mother: Yes, I did.
Mr Walker: Did your ticket say a different time?
The mother: No, it didn’t.
Mr Walker: No. All right. So you well knew your times of your flights?
The mother: Yes, I did.
Shortly after that, this exchange took place:
Mr Walker: I suggest to you that that was just a simple mistake by you in not getting there in time and nothing to do with [the father] trying to retain you in Tasmania?
The mother: It could have been. I wasn’t sure if he was trying to. I’m pretty sure I said that.
It is not clear to me who she was “pretty sure” she had “said that” to, but her oral evidence about the incident was very different from what she had said in both of her affidavits.
The mother’s excuses for not contacting child protection authorities in either NSW or Tasmania lacked any semblance of credibility. On Day 1 this exchange took place between the mother and the father’s counsel:[22]
[22] Transcript: Day 1 at pages 38 and 39
Mr Walker: And when you were in Tasmania you didn’t contact the Child Protection Services, or anybody like that, to say that [the child] was in danger?
The mother: No.
Mr Walker: You didn’t think she was in danger, did you?
The mother: I did.
Mr Walker: You did?
The mother: I suspected.
Mr Walker: You suspected?
The mother: I checked her for bruises, but there wasn’t any.
Mr Walker: And you were concerned about his mental health?
The mother: Yes.
Mr Walker: His erratic and violent behaviour. All those concerns?
The mother: Yes.
Mr Walker: And you didn’t contact the Child Protection Services?
The mother: No. I was alone with him.
Mr Walker: And you didn’t contact them between May and when you went down there?
The mother: No. I rang up DoCS in Sydney for advice, and they told me to contact Tasmania. I put it off because it would have been expensive. But then - - -
Mr Walker: Expensive to contact them?
The mother: To call them, yes.
Mr Walker: Would have been expensive to call them?
The mother: Out of state. I didn’t have – I literally, like, didn’t have the phone. That’s what I meant. If I had had the phone I would have done it.
Mr Walker: You say in paragraph 25 of your affidavit that on one occasion you walked into the room and [the father] was masturbating in front of [the child]?
The mother: Yes.
Mr Walker: Why didn’t you just walk straight out and go to the DoCS?
The mother: I don’t know.
The mother’s explanation for not contacting child protection authorities in Tasmania appeared to be that either a phone call from NSW would have been too expensive or she did not have a telephone. However, she was unable to explain why she did not contact child protection authorities in NSW when that would not have involved an expensive telephone call or even a phone call at all.
The significance of the mother’s “failure” to contact child protection authorities in either NSW or Tasmania needs to be seen in the context of her relying upon photographic evidence of black eyes that the child had in May 2010. In this regard, the mother annexed a photograph to her second affidavit and said:[23]
In late April or early May 2010 I saw [the child] on one occasion when I met with [the father] at (omitted) train station with my father. I spent a few hours at the shops with [the child] and my father. … I observed [the child] to have what seemed to be black eyes. I asked [the father] how it happened and [he] responded “she fell on her face but she’s fine”. I was still scared of [the father] at the time and so I believed [him] and urged my father not to make a fuss about it. I now know with hindsight that I should have questioned [the father]. My father took a photo of [the child] with his mobile phone and a copy of that photo is annexed hereto….
[23] Paragraph 16 of her second affidavit
In her evidence-in-chief she corrected what she said about her father taking the photograph, by saying that she had taken it. She also produced a better copy of that photograph, which is Exhibit “M1”.
In response to queries about exactly when Exhibit “M1” had been taken,[24] the mother also produced other photographic images that she said were taken on the same day, being 1 May 2010. They are Exhibits “M2” and “M5”. (I must admit to having been a little confused by those exhibits. For example, the image of the child playing with some beads at the seventh page of Exhibit “M5”[25] is shown to have been taken at 4.56 pm on 1 May 2010, but the first page of Exhibit “M2” suggests that a computer image of that same photograph was created at 3.28 pm on that day. Logically, it would not have been be possible to create the image of the photograph on a computer more than an hour before that photograph had been taken by the mother’s mobile telephone. I can only assume that the mother’s telephone and the clock on her computer were not “in sync”.)
[24] Mainly my queries
[25] Image No. 01052010328
However, what is more significant to me is that Exhibits “M2” and “M5” show that at least 12 photographs of the child were taken at the time[26] and the nature of those photographs suggests to me that they were not taken out of concern about the child’s injury or for evidence in a court case, but rather as a record of a family outing. I also note that there was no mention of the child’s black eyes in the mother’s first affidavit, notwithstanding that she claimed then to have “serious concerns for [the child]’s wellbeing”.[27]
[26] The sequence numbers run from 313 to 330 inclusive, being a total of 18, but only 12 images featuring the child were tendered as Exhibits.
[27] At paragraph 18
I further note that, not only did the mother not make any complaint or referral to the NSW Department of Community Services (“DoCS”) about the child’s black eyes; she did not she mention the child’s black eyes when she was interviewed by the psychologist. In relation to the latter, the following is an exchange between counsel for the ICL and the mother:[28]
Mr Fitzgerald: I suggest you didn’t talk to [the psychologist] about your concern that [the father] may have physically assaulted [the child] as set out in paragraph 16 of your report, and the photograph. Is that correct?
The mother: I don’t recall. I think I might have mentioned that she had black eyes.
[28] Transcript: Day 1 at page 71
However, when Mr Fitzgerald pressed her about that, this exchange took place:
Mr Fitzgerald: Now, I’m going to suggest to you, you did not raise with [the psychologist] that he had physically assaulted or otherwise caused [the child] to be placed in a position of sustaining such significant injuries?
The mother: No, I don’t think so.
Mr Fitzgerald: You didn’t, did you?
The mother: No.
I note that the first mention of the black eyes appears in paragraph 65 of the psychologist’s report, where he reports upon a telephone conversation he had with the maternal grandfather six days after he had conducted interviews with the mother and father. In that paragraph, the maternal grandfather is reported to have said that “both he and [the mother] took photos of [the child] that he will try to recover as evidence if required”. (I place no weight upon the criticisms of the father made to the psychologist by the maternal grandfather, because he did not provide an affidavit on his daughter’s behalf.)
Weighing up all the evidence about the child’s black eyes, I have no hesitation in concluding that on 1 May 2010 when the mother saw the child and photographs were taken, she was not at all concerned that the child had come to any harm at the hands of the father. However, in order to “strengthen” her case in this Court, she belatedly produced only the first photograph[29] in a deliberate attempt to create an impression that the child may have come to some harm at the hands of the father. It was only in response to a query about when that particular photograph had been taken, that the mother produced the other photographs which show to me that the first photograph produced is but one in a series of family outing photographs. It is therefore not surprising to me that the first photograph she produced was the most graphic in the series.
[29] Exhibit “M1”
In her first affidavit, the mother had said this in relation to her trip to Tasmania in October 2010 :
I considered taking [the child] with me then however it was not possible as [the father] would not allow me to go out alone. I also could not afford the plane ticket as [the father] had purchased my ticket.[30]
[30] Paragraph 17 - my emphasis.
However, when she affirmed her second affidavit nine months later, she changed that to read:
I considered taking [the child] with me then however I could not as [the father] would not allow me to go out alone and I could not afford the plane ticket as I recall that I purchased the ticket using a Centrelink loan and so I had no other money to buy a ticket.[31]
[31] Paragraph 21 - my emphasis.
Having heard the oral evidence of the parties, I conclude that:
·while the mother may have obtained a Centrelink loan to help her to pay for her ticket, the father repaid to her a significant part of the cost of that ticket after she arrived in Tasmania (which she then used to buy things for the child); and
·that is why, in her first affidavit (completed only weeks after her return from Tasmania) she had said that the father had “purchased [her] ticket”.
At paragraph 29(c) of her second affidavit, the mother refers to something that had not been mentioned in her first affidavit. She said:
In December 2008 [the father] engaged in a physical fight with my uncle … in my presence. As a result of this fight, my uncle suffered a broken leg. My uncle informed me words to the effect “I didn’t want to report [the father] because he was just a kid and I didn’t want a police report like this following him for the rest of his life”. My [uncle] had to have surgery on the leg that was broken.
When she was cross-examined about that, the mother agreed that the uncle had started an argument with her about the use of a bathroom and the father had “stepped in to protect [her]”.[32] She also agreed with what had been stated in the relevant police report, being that she held no fear for her own safety on that day.[33] However, when it was put to her that the police report did not mention that her uncle had a broken leg, she responded to that with the following answer:
I believe he found out like a day or two later, when he went to the hospital. That’s what he told me, yes. I know he found out afterwards, yes.
[32] Transcript: Day 1 at page 45
[33] Transcript: Day 1 at page 46
In my view, it is significant that the mother did not rely upon an affidavit from her uncle, nor did she produce any medical reports about a broken leg that required surgery or any other injury.
The police report of that incident on 18 December 2008 notes as follows: [35]
[The mother] has attempted to use the bathroom. At this [the uncle] has got into a verbal argument with [the mother] over the availability of the bathroom. [The father] has then interceded with [the uncle] and [the uncle] has turned on him. Both parties have then exited the house and have gone onto the driveway. There they have had a physical altercation. This lasted a few seconds before the parties then re-entered the premises. A short time later [the uncle] has entered the room of [the father] and [the mother] and resumed the argument. This has resulted in a second physical altercation from both parties that lasted a minute or two.
[35] Contained in Exhibit “ICL2”
That report suggests to me that the uncle was the aggressor twice, and I also note that the report also states that the uncle “was moderately affected by intoxicating liquor”.
At the start of that police report, it states that the informant who telephoned the police “(had) 5 month old and blood all over him”.[36] That suggests clearly to me that the father was the person who called the police, but I note that nowhere in the report by the officers who attended at the scene is there any mention of blood. Although the mother was asked questions about the blood by her own counsel in re-examination, I am satisfied that the mother opportunistically used those questions to say that both the father and the uncle had the uncle’s blood all over them.
[36] My emphasis
In relation to that incident generally, I conclude on balance that the mother’s uncle was the aggressor on two occasions and I accept the father’s evidence that he was defending himself from the uncle’s aggression.[37] I further conclude that the mother has belatedly fabricated or exaggerated details of the incident, both in her second affidavit and in the account that she subsequently provided to the psychologist, in order to make it look like the father was far more aggressive and violent than he was on that occasion.
[37] Transcript: Day 4 at page 100
In her second affidavit the mother said this (which essentially repeats what she had said in her first affidavit on 4 November 2010):
26. On 4 November 2010, I was aware that [the father] was back in Sydney for his mother’s wedding and was going to be in Sydney until 8 November 2010. I contacted [the father] by SMS to attempt to speak to him and see [the child] to see if she was okay. [The father] did not respond so I telephoned him.
27. During my telephone call to [the father] he said words to the effect “I’m going to kill you and your boyfriend” and “I can bash the shit out of her if I want, she’s mine” (referring to [the child]) and “I’m going to get you, I know where you are”.
It is of significance that mother contacted the NSW police on that same day and their report of 4 November 2010 makes absolutely no reference to any threats by the father. It states:
The [mother] stated that the [father] took [the child] to Tasmania with him this July without the [mother]’s consent. About 9.30am on the above stated time and date, the [mother] spoke to the [father] over the phone as he had just returned from Tasmania with the [child]. An argument ensued about who has direct rights to [the child]. The [mother] stated that [the father] won't allow her to see [the child]. The [mother] became upset and called police. At 12.35pm on the same date, police attended and obtained details. The [mother] wanted to know her rights in gaining full custody of [the child]. Police advised to obtain Family Law Court Orders. [The mother] stated that she was in the process in applying.[38]
[38] Also contained in Exhibit “ICL2”
Indeed, immediately above that entry, the police had stated:
Fears Held By Victim: Nil. Fears Held By Police: Nil.
When she was cross-examined about what she had said to the NSW police on 4 November 2010, the mother said:
I don’t know if I had said “kill me”, but I told them that he had made threats towards me and my partner. [39]
[39] Transcript: Day 1at page 42
Later she said:
I was scared, but I didn’t say that to them. I was just asking about my rights for [the child]; that was my concern. [40]
[40] Transcript: Day 1at page 43
Clearly, this is another of example where the mother’s version of an incident differs from the police version.
At paragraph 26 of her first affidavit, the mother said:
Whilst [the father] did not physically harm [the child], she was present through nearly all the incidences of violence. She heard the screaming and witnessed [the father] physically assaulting me.
In paragraph 30 of her second affidavit, she also expanded upon that in a way that completely changed the effect of her evidence. The added words are also in bold type below.
Whilst [the father] did not physically harm [the child] in terms of hitting her but I did observe [the father] push her over and say “fuck off” for example if [the child] disrupted him when he was on the computer. [The child] was also present through nearly all the incidences of violence. She heard the screaming and witnessed [the father] physically assaulting me.
From the changes in her evidence between her first and second affidavits, I gained the impression that with the passing of approximately nine months and an impending court hearing, the mother was attempting to portray the father in an even worse light in her second affidavit than she had in her first affidavit.
On occasions in her oral evidence the mother was prepared to either blame her solicitor or claim not to understand the legal process when she did not have a satisfactory explanation for something that was put to her. For example, when counsel for the ICL put to her that he had not read anything in her affidavit material about the child being neglected during the time she spent in the father’s home in October 2010, the mother responded:
When I first made the affidavit I didn’t really understand what it was, and now that I’ve updated it, [my solicitor] decided just to leave the beginning the same, more or less. I didn’t really understand what was - I said …
Then when I asked her to repeat that, she said:
Okay. So when I first made the affidavit I didn’t quite understand what it was I was doing, because I didn’t really have any experience, like with legal stuff. So when we’ve updated it in August, [my solicitor] decided to just keep the beginning as it was, whereas I wouldn’t have minded adding, but she was more concentrating on the phone calls ….
Pressed further by counsel for the ICL, she said:
When I made the initiating application, to be honest, I didn’t understand what an affidavit was. I didn’t know it was going to court. I thought it was something to let her know what was going on or something.[41]
[41] See Transcript: Day 1 at pages 69 and 70
That answer suggests that the mother was not told by her solicitor that her first affidavit was intended to be in support of a court application, which in itself defies credibility. However, I also note that the mother signed her application on 4 November 2010 and:
·it clearly indicated on the first page that it was an application to be filed in a court;
·her signature is immediately below the “Statement of Truth” on page 9 which refers, not only to “orders sought in this application”, but also to “a duty to the Court”; and
·she clearly marked the box indicating that she had “read and understood this Statement of Truth”.
It must be clear from what I have said so far that I have significant concerns about the veracity of the mother’s evidence generally. However, those concerns assume significant proportions in relation to her very serious allegations that the father imprisoned her, threatened her, assaulted her and raped her repeatedly over a number of days just prior to their separation in late February 2010.
In her first affidavit the mother had said:[42]
On 18 February 2010 I left the home to attend my brother’s birthday. I phoned [the father] and during that conversation we reached an agreement that we would break up. [The father] convinced me to return home to collect my belongings, which I did. When I got home that night, [the father] locked the doors and put a spare mattress against the back door. Over the next three to five days, I cannot recall exactly as I was too traumatised and terrified to know, [the father] beat me, threatened to murder me, threatened to cut up my genital area and raped me repeatedly. On the last day of this ongoing assault, I had an appointment scheduled at an optometrist. [The father] let me go to this appointment. After the appointment I said to him “please let me go”. [The father] said “no” and then threatened me with the sharp end of a coke can he had shredded. There were not many people around at the time and everyone who was ignored our fight and did not come to my assistance. [The father] tried to force me to go into a back street near the nearby river once we were outside. On the way there, I ran into the Woolworths and called Police. [The father] had [the child] in her stroller at the time. I did not want to leave her but I did not feel that I had a choice as he had been threatening my life. The police came and took me home and assisted me whilst I packed a small bag. They encouraged me to leave [the child] there as it was getting late and chilly. I did not tell the officers at the time how serious the assaults were as I was still in shock from it all and struggling to deal with it. I did tell the officer on the phone when I called however that I had been raped.
[42] At paragraph 25(f)
In her second affidavit the mother expanded upon that.[43] She added the words that are in bold type below.[44]
On 18 February 2010 I left the home to attend my brother’s birthday. I phoned [the father] and during that conversation we reached an agreement that we would break up. [The father] convinced me to return home to collect my belongings, which I did. When I got home that night, [the father] locked the doors and put a spare mattress against the back door. Over the next three to five days, I cannot recall exactly as I was too traumatised and terrified to know, [the father] beat me, threatened to murder me, threatened to cut up my genital area and raped me repeatedly. On the last day of this ongoing assault, I had an appointment scheduled at an optometrist. [The father] let me go to this appointment. After the appointment I said to him “please let me go”. [The father] said “no” and then threatened me with the sharp end of a coke can he had shredded. There were not many people around at the time and everyone who was ignored our fight and did not come to my assistance. [The father] tried to force me to go into a back street near the nearby river once we were outside. On the way there, I ran into the Coles and called Police. I phoned [named location] Police station to report the assault, and then called them a second time to the best of my recollection a few hours later. I spoke to a male police officer the second call and said to him words to the effect “I rang the police and I’m wondering how long they’re gonna be? My name is [mother’s name]”. The officer said to me words to the effect “someone called [father’s name] is here looking for you”. I replied and said “that’s him, don’t tell him where I am, he beat and raped me”. The officer paused and then said words to the effect “that’s a very serious accusation”. I felt as though he did not believe me as it felt to me as though he dismissed what I said. [The father] had [the child] with him in her stroller at the time this was all going on. I did not want to leave her but I did not feel that I had a choice as he had been threatening my life. The police came and took me home and assisted me whilst I packed a small bag. They encouraged me to leave [the child] there as it was getting late and chilly. I did not tell the officers at the time how serious the assaults were as I was still in shock from it all and struggling to deal with it. I did tell the officer on the phone when I called however that I had been raped. I did not phone earlier as [the father] had taken the batteries out of the phone at home and I could not think of a way to access a phone until we were out in public.
[43] At paragraph 29(i)
[44] “Woolworths” was also changed to “Coles”, but nothing turns upon that
The psychologist reported the mother’s version of that as follows:[45]
[The mother] said the situation became unbearable and she resolved to end the relationship. A long-time friend of the father, Mr S, now her current partner, gave her the support she needed to end her relationship. [The mother] said she phoned [the father] and declared her intention to leave him. She was surprised by his calm response and his invitation to come home to pack some things. She returned home and found him waiting for her. A mattress had been pushed against the back door and he locked the front door as she came inside. [The mother] became very tearful at this point, saying she had not talked fully about the events that happened next to anyone other than her partner, Mr S. She explained that [the father] effectively kept her prisoner in the home for several days: she could not recall but she thought about three days. She said he did not hit her, but punched walls instead. He did push her and put his hand over her mouth while all the time asking her why she was leaving. She recalled that at one point she must have passed out because [the father] started punching her to bring her around. Thereafter he continued to hit her repeatedly. She said he made her take all her clothes off and talked to her about his fascination with female mutilation, saying he always wondered what it would be like to cut off her breasts and cut out her genitalia. [The mother] said she had been aware for some time he viewed material of this nature on the internet. She said he had always wanted anal sex in the relationship and at this point said to her if she let him have anal sex he would not hurt or kill her. At this point [the mother] was very tearful. She indicated that he then anally raped her. She said that afterwards, while she was showering, [the father] came in to shower with a knife. She said she felt incredibly vulnerable. She said he made her say she loved him and that she would not leave him.
[The mother] said that a day or so later they had an optometrist appointment for her contact lenses. They went into town with [the child]. Emboldened by the public setting, [the mother] said again that she wanted to end the relationship. She said he was holding the pram with [the child] in it and would not let her take the pram. He was holding a Coke can and tore it up and threatened her with it the rough edge. She tried to walk away but he ran after her. [The mother] said she ran into a Coles supermarket and asked staff to call Police. Staff took her to a back room where Police spoke with her. Police subsequently escorted her back to her home. She said [the father] was acting all nice and she felt unable to tell Police about the physical sexual assaults that had taken place only days before. She said by this time [the child] was fast asleep and she felt some pressure from Police to let her continue sleeping and leave the situation.
[45] At paragraphs 22 and 23 of his report
It is clear that the psychologist preferred the mother’s version of what happened shortly prior to the parties’ separation over that of the father (who clearly denied any imprisonment or sexual assault, but I will refer to his evidence below).
At paragraph 89 of his report, the psychologist said:
[The mother] described very severe physical violence, sexual violence, verbal denigration, emotional abuse, and financial control by [the father]. The Police documentation obtained supported some of her disclosures. The objective presentation included significant distress, tearfulness, and autonomic hyperarousal as [the mother] described the details of these events. Her account of these difficulties was consistent with the known psychological sequelae of severe family violence, including subjugation and accommodation without protest…. The fact she did not disclose the severity of her private experience to authorities is noted, but this does not necessarily undermine the veracity of her account.
Then in response to a specific request for his “assessment of the integrity of the disclosures made by the mother of family violence and sexual assault”, the psychologist said this at paragraph 93 of his report:
The Writer found no reason to doubt the veracity of the mother’s disclosures. Specifically, no indication of any serious mental disorder was identified. The autonomic arousal and emotions expressed by the mother were beyond her control and could not be feigned. The Writer found the mother’s account of the history to be reliable and credible. The father’s account of the history appeared to be less reliable and more self-serving. The Writer’s experience in conducting these assessments is that the truth usually lies somewhere in the middle of disparate accounts. Overall, the Writer accepted the mother’s account of the history as being more reliable, and many of the opinions expressed in this report proceed from that assumption.
In response to questioning by counsel for the ICL, the psychologist said:
Again, it goes to the importance of making very careful objective observations of a person’s mental state, which is often more reliable than the things that they subjectively report. And in this case autonomic arousal is an activation of anxiety that is associated with recollections of trauma memories. And it is simply beyond a person’s direct central nervous system control, to be able to activate or deactivate that sort of thing. But we know from considerable experience that when a person is talking about past trauma events, there is associated almost a cascade of memories and emotions that are associated with that and that triggers anxiety.
The psychologist was asked whether he applied some scepticism because the mother might be “a highly creative accomplished actress”. His reply was:
That was certainly said to me, but, again, it is something so objectively and involuntarily manifest that it really is something that cannot be feigned. And it is often used as an objective test, and the opposite is equally important, that is, the absence of any autonomic activation, so that when a person gives an account of things without any apparent discomfort, then we become even more sceptical about the veracity of that report.[46]
[46] See Transcript for Day 6 at page 285
What concerns me is that the psychologist does not appear to have given sufficient consideration to the possibility that, if the mother had lied about those very serious matters, to the extent of committing perjury, and understood the seriousness of her false allegations, she would have been very likely to experience significant discomfort when questioned by him about those allegations as part of the court process.
I gained the impression that the psychologist’s views about the mother’s truthfulness were largely determined by what he saw as her “distress, tearfulness, and autonomic hyperarousal”. Unfortunately, while his observations were in a professional context, they were still his subjective observations and, in my opinion, they appear to have been influenced to an extent by his misinterpretation of some police reports.
For example, the psychologist accepted a statement by the mother that she and the father had “started cohabiting in May 2007 after [the father’s] mother kicked him out when he threatened her”. Immediately after reporting that, the psychologist added a footnote: “This is consistent with Police records.”[47] In fact, the relevant police record does not refer to either any threat to the father’s mother or to him being “kicked out” by her.[48]
[47] See paragraph 17 and footnote 1 of the psychologist’s report.
[48] See Exhibit “ICL2”
In relation to the mother’s report to him of the father’s altercation with her uncle (that has been referred to above), the psychologist said at paragraph 18 of his report:
[The mother] said that [the child] was four months old when the incident occurred in which [the father] and her uncle had a fight at her grandmother’s home where they were boarding.
At that point, the psychologist added a second footnote: “This is consistent with Police records.”
Paragraph 18 then continued:
She said that although she did not get on with her uncle, he was too old for [the father] to fight with and she was alarmed to see the violence that [the father] was capable of. She said that when the second fight broke out in the bedroom [the father] had pinned her uncle to the ground and was repeatedly punching him to the face. At the time she thought [the father] had killed her uncle. [The mother] said it was she who called Police to attend. Once outside, she was alarmed to see [the father]’s sense of exhilaration.
That is clearly not consistent with the police report of the particular incident in a number of respects. There was no suggestion in that police report that the mother had been concerned about her uncle being killed (or even suffering from a broken leg), and as I have mentioned above, it appears that the father rang the police. I repeat that the police report of the incident suggests that it was the mother’s uncle who was the aggressor twice while under the influence of alcohol.
To his credit, the psychologist appeared to concede in cross-examination that some of his footnotes were not as accurate as they could have been.[49] Indeed, the psychologist also appeared to concede that at least one footnote could have given an impression of bias in favour of the mother and against the father.[50]
[49] See Transcript: Day 6, pages 265 to 268
[50] See Transcript: Day 6 at the foot of page 266
My general assessment of the police reports in this matter is more in accordance with that of the psychiatrist than with that of the psychologist. In that regard, the psychiatrist said:
Nothing in the police records points to anything other than hot temper, argumentativeness, verbal aggression and low grade physical assaults not producing injury.[51]
[51] See the last paragraph on page 9 of the psychiatrist’s report.
I am of the opinion that the psychiatrist was correct when he expressed the thought “that [the psychologist] was over impressed by the length of the police record but not by its detail”.[52]
[52] See Transcript: Day 5 at page 161 (and at page 181 where he said something similar).
When it comes to assessing truthfulness, I have a very real concern about the possibility of attributing too much weight to a perception of a person’s physiological reactions when making statements (or lack of physiological reactions). If the truth or falsity of a person’s statements could be assessed simply from his or her physiological reactions, the use of lie detector machine results would be commonplace in our justice system. I believe that I can take judicial notice of the fact that they are not used in Australia because much doubt has been cast upon the reliability of such machines to be able to assess truth or falsity.
I also note that when it was put to the psychiatrist that, from the psychologist’s perspective, the mother’s autonomic reactions were inconsistent with feigning, the psychiatrist responded: [53]
Yes. He formed a view and I can’t argue with it because I didn’t observe her in the same way. But certainly a very, very accomplished actor can produce almost entirely the same result…[54]
[53] See Transcript: Day 5 at page 184
[54] Counsel’s interruption omitted
In my view, the mother’s allegations need to be seen in the light of all the surrounding circumstances, including her actions or lack of action after the alleged incidents. Those include:
i)Inconsistencies in the mother’s evidence;
ii)The mother’s apparent failure to pursue police action on 25 February 2010 or after that; and
iii)Her travel to Tasmania from NSW and the circumstances of her staying with the father for six days in October 2010.
It is clear that there are numerous inconsistencies in the mother’s evidence. Given what I have already said above, I do not consider it necessary to say much more about her inconsistencies at this point, other than to refer to one piece of the mother’s evidence that I found to be literally incredible.
When cross-examined by counsel for the father, this exchange took place:
Mr Walker: Three to five days of being kidnapped, locked up and brutally assaulted he takes you to an optometrist appointment?
The mother: Yes, because we had paid a deposit and he didn’t want to lose it.
Mr Walker: Right. Right. So we paid the deposit and we didn’t want to lose it?
The mother: He didn’t want to lose it, I said. My grandmother paid for it so – gave us the money, I mean.
It appears that the mother wants me to accept that father imprisoned her for days and raped and brutally assaulted her throughout the period, but he then allowed her to go from that imprisonment to a public location because he did not want to lose the deposit for an optometrist’s appointment that he had not even funded. As I have said, I find that to be incredible.
It is noteworthy that the police report of the events of 25 February 2010 differs significantly from the mother’s versions of what took place on that day. The police report of the facts reads as follows:
The victim and [the father] have recently moved to the (omitted) area from (omitted) due to housing difficulties in the (omitted) area. They now reside at … (omitted) with their young daughter. The pair have had minor arguments in the past but of late the arguments are becoming more frequent. The victim has now decided to end the relationship and move back to the Sydney area with her father at … (omitted). Prior to telling the [father] about this decision they attended the vicinity of Coles at (omitted). The victim at this point told the [the father] of her decision. The [father] became upset and they commenced to argue. Not wanting to argue in front of their daughter the victim entered Coles and asked staff there to contact police for their assistance. The [father] had left the area and returned home with the child. Police then attended Coles where they escorted the victim to her home where she collected her belongings and further explained to the [father] that she was leaving. At this point the child remains in the car (sic) of the [father] until they sort out custody issues. The victim was then conveyed to the (omitted) railway station where she waited for a train to return to her father’s residence. Nil violence, nil threats, nil fears.
It is logical to assume that, up until the time that the police attended at Coles, all of the information provided in that report must have been provided by the mother or by the person(s) she spoke to at Coles. That is significant because of the differences between the police report and the mother’s subsequent affidavit evidence. For example:
a)The mother said in her affidavits that on 18 February 2010 she had left the home to attend her brother’s birthday. She said that she had telephoned the father and they had agreed that they would break up. However, the police report clearly suggests that she had not told the father about her desire to leave him until they were in the vicinity of Coles on 25 February 2010.
b)There is no mention in the police record of the mother’s report to them by telephone of either being raped or beaten as claimed by the mother in her affidavits. The police only report that there had been minor arguments in the past which had been becoming more frequent “of late”. The police record contains no reports of violence, threats or fears. Indeed, earlier in the police report it stated: “The victim holds no fears for her safety”.
It is clear that the father left NSW for Tasmania with the child at the end of May 2010. The mother then visited Tasmania in October 2010 and stayed in the father’s residence for approximately six days. The only other people in that residence during that period were the father and the child. Clearly, there is an incongruity in the mother travelling from NSW to Tasmania to stay for approximately six days in the residence of the man she claims had viciously assaulted and raped her over a period of between three and five days approximately six months earlier.
It was the father’s evidence that:
·he and the mother slept together during the mother’s visit to Tasmania in October 2010;[55] and
·she had told him at the time of the interviews with the psychologist in March 2011 that he could be the father of her then unborn second child (who was subsequently born on (omitted) 2011).
[55] See paragraph 37 of his affidavit.
The mother denied all of that.
In paragraph 18 of her report, the Family Consultant had said:
She stated that it will be a relief for her to have the matter resolved, although she did also mention that there was a possibility that it would be adjourned as [the father] is now asserting that [the second child] may have been conceived whilst [the mother] visited Tasmania in October, 2010. [The mother] stated that there is no chance this could have been the case as, unbeknown to [the father], she was already pregnant.
During the mother’s oral evidence, I asked questions that would have clearly shown the mother my surprise that, in her conversation with the Family Consultant, she had apparently failed to assert that sexual intercourse had not occurred during her stay with the father in October 2010. In relation to my question whether she had made any comment to the Family Consultant denying a sexual relationship with the father while she was in Tasmania, the mother said:
Yes, I’m sure I did say that to her, but I’ve obviously said it while she didn’t hear me. I remember saying that while I was holding (the second child) and he was crying.
However, when questioned about that by counsel for the ICL, the Family Consultant’s version was clearly different. After she was referred to paragraph 18 of her report, the following exchange took place:
Mr Fitzgerald: Would you agree it’s not exactly an emphatic denial of sexual encounter with [the father]?
Family Consultant: No. Well – no, no.
Mr Fitzgerald: Okay, did [the mother] ever indicate to you that she had, in October of 2010, a sexual encounter with [the father]?
Family Consultant: No, and I didn’t ask.
I find that the question of any such sexual encounter in Tasmania (or lack of one) was not discussed during the Family Consultant’s interview with the mother at her home.
In her oral evidence, the mother did admit to lying in the same bed as the father on one occasion during her stay in October 2010. When re-examined by her counsel, she said:
Well, he was pressuring me to sleep with him, with [the child] in the bed as well, so it was like 2 o’clock in the morning and he kept pressuring me so I did go – I did get off the lounge and I went in the room and I kind of laid in the bed and then I just couldn’t do it so I got right back up and walked back out to the lounge and he continued asking me throughout the night until he fell asleep after that.[57]
[57] Transcript: Day 1 at page 94
In her report, the Family Consultant had said:[58]
One of the other concerning dimensions to this case … is [the mother]’s capacity to maintain clear boundaries around her relationship with [the father]. Her decision to travel to Tasmania and stay in his home with [the child] in October 2010, is puzzling particularly considering her prior allegations about [the father] and her assertion that she was in a committed relationship with [Mr S] and from her accounts already pregnant. Whilst her actions may have possibly been motivated by her need to spend some time with [the child], it does raise some questions about the clarity of the separation and any mixed messages she and [the father] may have given each other.
[58] At paragraph 27
When the Family Consultant was questioned about that by the father’s counsel, the following exchange took place:
Mr Walker: Specifically did she tell you that she had been held captive for three to five days on one occasion and raped and anally raped?
Family Consultant: I don’t know that - I don’t know if she had told me specifically that herself, but that was the extent of the violence that I had gathered from reading the material.
Mr Walker: So even in terms of what you see in the Family Court from time to time, that’s an extreme level of violence, is it not?
Family Consultant: Well, that’s pretty serious violence, yes, yes.
Mr Walker: Yes. Not the sort of thing which parties are inclined to forgive and forget overnight?
Family Consultant: Well, I would have thought that ‑ ‑ ‑
Mr Walker: Do you agree with that?
Family Consultant: Well, I would have thought that with that level of violence - you know, I reiterate that I was surprised that that level of violence would have made her feel comfortable, for whatever reasons of wanting to see [the child], comfortable to spend time staying at his place of accommodation.
Mr Walker: And when you add to that that the court has been told that she stayed alone with him in the house apart from [the child] for up to a week and that on one occasion during the night, she went up and lay on his bed, does that surprise you even more?
Family Consultant: Well, it’s quite puzzling about her motivations, yes.
Mr Walker: I would like to suggest to you that the word is not “puzzling”, it’s more likely “implausible”, isn’t it?
Family Consultant: Well, yes, it’s incongruent behaviour with her allegations.
I find it difficult to accept the mother’s claim that she knew about her pregnancy before her trip to Tasmania in early October 2010. I say that because, if she had conceived in mid-September as claimed, it would be unlikely that that she would have been aware of that before her departure for Tasmania.[59] While I do not make any finding in relation to the paternity of her second child, I refer to this only in relation to the credibility of her evidence about the timing of when she ascertained that she was pregnant.
[59] See Transcript: Day 1 at page 93
Notwithstanding that the mother has alleged that the father has committed some very serious crimes against her, it is important to remember that the hearing in this matter was not a criminal trial. Proceedings under the Family Law Act 1975 are civil proceedings and subsection 140(1) of the Evidence Act 1995 states that the standard of proof in civil proceedings is that the court must be satisfied that the case has been proved on the balance of probabilities. However, subsection (2) states:
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Paragraph (c) of that subsection specifically incorporates dicta in cases such as Reifek v McElroy,[60] Helton v Allen[61] and Briginshaw v Briginshaw,[62] all of which state that the degree of satisfaction which the civil standard of proof calls for may vary, having regard to the gravity of the facts to be proved.
[60] Reifek v McElroy (1965) 112 CLR 517
[61] Helton v Allen (1940) 63 CLR 691
[62] Briginshaw v Briginshaw (1938) 60 CLR 336
A passage of Dixon J’s judgment in the well known case of Briginshaw reads as follows: [63]
The truth is, that when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality.
[63] Briginshaw at p.361
In relation to the mother’s very serious allegations against the father, especially in the days leading up to 25 February 2010, I find that I do not “feel an actual persuasion” of their occurrence, notwithstanding the views of the psychologist about the mother’s veracity.
The mother told the psychologist that she has a passion for reading and creative writing.[64] I also accept the father’s evidence that:
·the mother’s training as an actress was more extensive than she is now prepared to admit;[65]
·she has a vivid imagination;[66] and
·she was continuing to write novels prior to their separation.[67]
[64] Psychologist’s report at paragraph 12
[65] See paragraph 49 of his affidavit
[66] At paragraph 48 of his affidavit
[67] He told the psychiatrist that she “would also be writing novels until 4am”.
In my view, the mother has employed her creative skills in relation to the way she presented her case in this matter and I conclude that she has fabricated many matters in order to create an impression that the father is a much more violent and dangerous man than she really believes him to be.
I also gained the very clear impression that the mother was quite opportunistic in commencing proceedings for a Recovery Order in Parramatta in November 2010, when she knew that the father and the child would be visiting NSW for a short time to attend the wedding of the father’s mother.
The benefit to the child of having meaningful relationships with both parents
[124] Mills & Watson [2008] FMCAfam 2
[125] (2008) FLC 93-382, Finn, Boland & Thackray JJ on 19 August 2008
[126] (2008) FLC 93-377, Warnick, Boland and Thackray JJ on 15 September 2008
It is clear to me that the child will benefit from a meaningful relationship with both of her parents. However, it is unfortunate that the parents live so far apart, because it means that this 4 year old is not able to spend time with one of her parents on either a regular or frequent basis.
I note that the father was considering a return to NSW when he gave evidence on Day 4 but he had changed his mind about that when he gave further evidence two months later on Day 5 of the hearing. I shall refer to that further below.
The need to protect the child from harm from abuse, neglect or family violence
I have examined the evidence in relation to violence and abuse above, and it should be clear that I do not accept the evidence of either the mother or her brother in relation to their allegations that the father had been violent or abusive to the child at times. I do not need to say any more about that here.
I have also found that the allegations made by the mother of serious physical and sexual violence on the part of the father are not to be believed.
However, it is clear that their relationship was verbally volatile at times. The mother told the Family Consultant that the father was a “screamer” like herself [127] and the mother’s partner conceded that there was an equality in the arguments between the father and the mother and that the mother was “giving as good as she was getting”.[128]
[127] Paragraph 15 of the Family Consultant’s report
[128] Transcript: Day 3 at page 43
It appeared to me that the most the father conceded was that their arguments may have been heated at times. However, I am unable to attribute any more responsibility for that to one party than to the other. Further, it seems to me that the parties’ heated arguments were situational and there is no real evidence of any continuance after their final separation. Indeed, the mother spent six days in the residence of the father some months after their separation and there is no report of any heated arguments during that time.
The only incident documented in the police records that involved any reported physical violence was the incident involving the mother’s uncle, and I have already concluded above that the mother’s uncle was the aggressor on two occasions and that the father was defending himself from the uncle’s aggression.
In relation to whether there is any direct or indirect risk to the child arising from the mother’s allegations of family violence and sexual assault, the psychologist said this in his report:[129]
95. Assessing risk of violence is difficult and entails complex issues, not least the fact that the consequence of a finding of high risk can see an individual deprived of normal liberties even before an act of violence has been committed. There is good agreement that a structured professional judgement procedure that takes into account static and dynamic, past and present factors is most effective. The HCR-20 is one such instrument and considers 10 historical factors, 5 clinical factors, and 5 other risk management factors in evaluating risk of future violence. Those 20 items are summarised at the conclusion of this report.
96. Applying the structured decision judgement approach using the HCR-20 for [the father], a number of factors suggest a risk of future violence, including: previous violence; young age at first violent incident; relationship instability; employment problems; psychopathy; personality disorder; lack of insight; unresponsiveness to treatment/intervention; plans lack feasibility; and stress. The construct of ‘psychopathy’ here is determined using the Psychopathy Checklist - Screening Version PCL-SV), which also adopts a structured judgement approach. In this regard, Mr G is considered to meet criteria for psychopathy because he: is superficial; is deceitful; lacks remorse; lacks empathy; does not accept responsibility; has poor behavioural control; lacks goals; has engaged in adult antisocial behaviour.
97. The Writer’s concluded opinion is that there is a clear direct and indirect risk of physical and emotional harm to [the child] while she continues to live with the father. The presence of [the father’s girlfriend] in the household is some, but insufficient safeguard. The involvement of [the child’s Family Day Carer] is also some, but insufficient safeguard.
[129] The psychologist’s footnotes have been omitted.
When he was questioned by counsel for the ICL about any risk of future violence if the mother’s version of events is accepted, he said this:[130]
As I've indicated in my report, the evaluation of risk of harm is, of course, terribly complicated and there are tools that are intended to try and assist with that, and the HCR-20 is one such tool. It’s a structured professional judgment tool that tries to take into account historical factors, current factors and future risk factors.
[130] Transcript: Day 6 at page 295
He went on:
And this, admittedly, is still a subjective - it’s a professional but nonetheless a subjective judgment based on information ideally from multiple sources but often incomplete certainty, so it’s – it’s a best attempt to try and predict risk of future harm. And on that HCR-20 it doesn’t generate an actuarial score that is normed against the population. It still results in a subjective judgment as to whether the risk is low, moderate or high.
I have some significant concerns about the psychologist’s opinion based upon HCR-20 factors that “there is a clear direct and indirect risk of physical and emotional harm to [the child] while she continues to live with the father”[131] because he based that opinion upon matters that I find are not valid. I shall examine the stated HCR-20 factors individually:
[131] Paragraph 97 of the psychologist’s report
·Previous violence: Clearly the psychologist based his assessment upon the mother’s allegations of serious physical and sexual violence which I have not accepted, and what I find was a misinterpretation of police reports. I repeat that the only documented police record involving physical violence was the incident when the mother’s uncle was the aggressor and that the father was defending himself.
·Young age at first violent incident: The father is certainly still quite young, but what I have said at the dot point above is also relevant in relation to this.
·Relationship instability: The father appears to have had two significant close relationships since he was 16 years old. However, the same can be said about the mother.
·Employment problems: The father certainly has a poor employment record but since February 2010 he has had the full-time care of the child.
·Psychopathy: I will refer to this below.
·Personality disorder: I note that neither the psychologist nor the psychiatrist diagnosed the father as suffering from a personality disorder. Further, I have stated above that I prefer the psychiatrist’s evidence that the father does not even exhibit narcissistic personality traits.
·Lack of insight: In my view, the father did not impress as being particularly lacking in insight. However, I note that he is still only 21 years old and the psychologist assessed him as being of estimated low-average general cognitive ability. Those two factors could contribute to a perception of a lack of insight. Further, such a perception could also have resulted from an erroneous view that the father should have taken responsibility for things that I have found he did not do.
·Unresponsiveness to treatment/intervention: There is no evidence that the father has not responded to treatment or intervention.
·Plans lack feasibility: If there is any lack of feasibility in the father’s plans (which I do not accept), that could be attributed to his relative youth and inexperience.
·Stress: There have certainly been some significant stressors in the father’s life, but I am of the view that he has not reacted abnormally to most of those. Indeed, he seems to have handled well the very serious allegations made against him, which I have found to have been false and fabricated.
The psychologist’s attribution of “psychopathy” to the father requires some analysis. Apart from anything else, the word itself has some pejorative connotations. For example:
·The Concise Oxford Dictionary[132] defines “psychopathy” as “mental illness or disorder”, and a “psychopath” is defined as “a person suffering from chronic mental disorder with abnormal or violent social behaviour”.
·Wikipedia states that “psychopathy” is a personality disorder characterized by a pervasive pattern of disregard for the feelings of others and often the rules of society, and that a “psychopath” lacks empathy and remorse, and has very shallow emotions.[133]
[132] Eleventh Edition, Revised 2006
[133] Source: >
I note that, after using the Psychopathy Checklist - Screening Version PCL-SV, the psychologist has concluded that the father “is considered to meet criteria for psychopathy because he: is superficial; is deceitful; lacks remorse; lacks empathy; does not accept responsibility; has poor behavioural control; lacks goals; has engaged in adult antisocial behaviour”.[134] Assuming that those criteria are proper indicators of psychopathy, they should be looked at in the light of the evidence that is available in relation to the father:
·Superficial: In relation to human qualities, the Oxford Dictionary defines “superficial” as “lacking depth of character or understanding”. While the father may have lacked some maturity, it should be remembered that he was only 20 years old at the time of his meetings with the psychologist. In my view, there is no real evidence supporting an assessment of “superficial” in relation to him. However, it must also be said that “superficial” is a subjective term.
·Deceitful: It is clear that the psychologist considered the father to be deceitful. I formed a very different view.
·Lacks remorse; Lacks empathy; Does not accept responsibility; and Has poor behavioural control: It seems to me that the psychologist’s assessment of all these indicators must have been strongly influenced by his conclusion that the mother’s versions of events were more honest than those of the father. I have found that not to be the case, so it is my opinion that it is not valid to attribute these indicators to the father.
·Lacks goals: While it is true that the father’s efforts and aspirations in relation to academic achievement and employment have not been not particularly impressive, that may well be more closely associated with the psychologist’s assessment of his cognitive ability and age than a lack of goals. While it seems that he was at one stage studying for his HSC, one must have some concerns about an education system that lets a student reach that level without mastering the sequential order of the months of the year.
·Has engaged in adult antisocial behaviour: Because “antisocial” is not defined, I consider the use of the term to be somewhat subjective. In addition, this criterion does not appear to refer to any frequency of such behaviour. In any event, I presume that some of the behaviour thought by the psychologist to be antisocial is that which the mother reported and I have found did not occur at all, or not in the manner reported by her. I also note that the father’s unchallenged evidence is that he has not ever been charged by the police, and has not been the subject of a police family violence order as an adult. (However, he did say: “I’ve had an AVO when I was 15.”)[135]
[134] At paragraph 96 of his report
[135] See Transcript: Day 4 at page 104.
Considering what I have said in the preceding paragraphs, it is my very firm view that the father is certainly not a “psychopath” and it was inappropriate and inaccurate to attribute “psychopathy” to him.
Having said all that, I note that the psychologist stated that “the evaluation of risk of harm is … terribly complicated” and “it’s a professional but nonetheless a subjective judgment based on information ideally from multiple sources but often incomplete certainty”.[136] However, it is my firm view that the psychologist based his subjective judgment of the risk of violence on false information and erroneous conclusions.
[136] See paragraphs 218 and 219 above
There is no evidence before me that suggests that the child has been subjected to any violence or abuse, or observed any violence or abuse involving the father since the parties separated. Consequently, it is my view that the risk of the child being exposed to any violence or abuse in the home of the father is very low.
I have no evidence to suggest that the risk of the child being exposed to any violence or abuse in the home of the mother is any different.
The child’s views
In view of the child’s age, this is not a relevant factor.
The child’s relationships with the parents and other people
In relation to his observations of the child, the psychologist said this:[137]
[The child] was brought to the assessment by [the father]. She was observed in the waiting room sitting still on a chair next to her father holding a Reader’s Digest. She was sitting very still. The Writer explained his intention to transfer [the child]’s care to Ms Nelke. [The father] consented to this. The Writer asked [the child] to accompany him to see her Mum. [The child] separated from her father without saying goodbye or acknowledging him. She followed the Writer rather bravely without protest. When introduced to the room where her Mum was waiting, [the child] stood still and looked at her Mum without moving. [The mother] also appeared uncertain for a while, but then sensitively engaged with [the child]. [The child] responded very cautiously. There was no spontaneity at all in her response, instead she seemed enormously restrained.[138]
[The child] left with her mother while the Writer spoke with [the father] alone. When they returned [the child] had become much more comfortable and confident in her mother’s company.
[137] At paragraphs 67 and 68 of his report
[138] At this point the psychologist added a footnote: “The Writer at first attributed this hesitancy to the fact [the child] and her mother had not seen each other since October 2010. It was later learnt they had spent time together the previous day when [the mother] first arrived in Tasmania.”
Later in his report, he said:[139]
The Writer’s initial impression of [the child] was that she was withdrawn, restrained, and vigilant. Her interaction with the father and mother suggested an insecure avoidant attachment style. [The child’s Family Day Carer] reported a more socially confident child, and it was reassuring to see evidence of this when she was seen in her home environment.[140]
[139] At paragraph 80
[140] The psychologist went on to say things in that paragraph that I do not accept for reasons set out in a number of paragraphs above.
At paragraph 6 of her affidavit, Ms N said that the child “loves her dad and is very affectionate towards him”. She was not cross-examined about that statement.
Similarly, the father’s aunt, Ms H, was not cross-examined about what she said at paragraph 9 of her affidavit, being:
[The child] is very affectionate towards [the father], she kisses and cuddles him. On almost every occasion that I spend time with [the child] I have heard her say to [the father]: “love you Daddy”.
However, she was cross examined about how often she saw the father and she stated that she saw him at least once per week for “anywhere from an hour to two hours”.[141]
[141] Transcript: Day 5 at pages 233 and 234
The evidence of Ms N and Ms H persuades me that the child’s relationship with her father is neither insecure, nor avoidant. I accept that, when Ms N and Ms H swore their affidavits, the child had that warm and loving relationship with her father that one would normally expect a child of her age to have with the parent with whom she had lived exclusively for the preceding 14 months.
In my view, any insecure or avoidant behaviour displayed by the child at the psychologist’s professional premises can in part be easily explained by the fact that she was in unfamiliar surroundings and was less than three years old at the time. It also explains why she was hesitant in the presence of her mother, notwithstanding that she had spent time with her the previous day.
Having said that, however, it is not surprising that the psychologist said that the child’s “strongest attachment would be with the father”.[142] In simple terms, that means that she has a closer relationship with him than she has with the mother.
[142] Transcript: Day 6 at page 281
The unchallenged evidence of both Ms H and Ms N was that the child had a good and affectionate relationship with Ms M.[143] At the end of the hearing the father and Ms M were not living together but they were seeing each other almost daily and were continuing an exclusive sexual relationship.[144]
[143] Ms M had said the same but, unlike the evidence of Ms H and Ms N, her evidence was not tested by any cross-examination so I place little weight upon her evidence.
[144] Transcript: Day 5 at pages 189 and 192
Given that the child’s only physical contact with Mr S appears to have been limited to the occasions of Mr S’s intermittent social contact with the mother and the father prior to February 2010, it is likely that the child does not have a relationship with him at all. However, even if there has been some electronic communication involving Mr S in more recent times, the relationship would still be tenuous at best.
At this time, the only relationship that the child has with the mother’s second child would appear to be genetic.[145]
[145] I am not determining whether that is a full-sibling or half-sibling relationship.
I accept the unchallenged evidence of the father’s aunt that the child has good relationships with the father’s wider family in Tasmania. Ms H said this at paragraph 8 of her affidavit:
Since arriving in Tasmania [the child] has become a confident and happy little girl. When she arrived she was shy and quiet. [The child] has improved significantly she can now speak in proper full sentences; she is polite and is progressing very well. [The child] is much more comfortable now around me and my family she will happily play with [a cousin] and chats away to all the family members. [The child] has come out of her shell she is becoming more and more confident in herself every day.
I also accept that the child has close and affectionate relationships with Ms N and her two daughters, as stated in paragraphs 8 and 9 of Ms N’s affidavit. Ms N appears to have become a substitute grandmother to the child.
It is clear from the paragraphs above that the child has close relationships with the father’s extended family and friends in Tasmania. The only real relationship that the child has in NSW is with the mother, and that is clearly not as close as the relationship she has with the father. In this regard, the psychologist stated clearly that the child’s strongest attachment would be to her father.[146]
The willingness and ability of the parents to facilitate and encourage the child’s relationships with the other parent
[146] Transcript: Day 6 at page 281
Given that the mother was prepared to fabricate and exaggerate her evidence in order to succeed in her application to have the child live with her, I have some significant concerns that she will not encourage the child’s relationship with her father. In short, I lack confidence in any statement by her that suggests a willingness to facilitate that relationship.
In paragraph 86 of his report, the psychologist said inter alia that:
·the mother had a fear of the father and was reluctant to communicate with him; and
·she was concerned that “the father will deny her a continuing relationship with [the child] and would find it difficult to promote him (sic) in a favourable manner”.[147]
[147] I believe that “him” was an error, and that the psychologist meant “her”.
The mother’s claimed fear of the father and reluctance to communicate with him do not sit well with tone of the Facebook messages that she sent to him as referred to at paragraphs 43 to 45 above.
In paragraph 87 of his report, the psychologist said this about the father:
He maintained his assertion that he continues to offer the mother invitations to communicate with [the child] that the mother has not responded to. His stated willingness to promote a continuing relationship with the mother seemed rather facile and self-serving.
Because the psychologist and I have very different views about the father’s credibility, it should not surprise anybody that I consider the second sentence quoted immediately above to be an unfair criticism of the father.
A number of things gave me confidence that the father will facilitate and encourage the child’s relationship with her mother. They included:
·a period of contact had taken place prior to the interviews at the psychologist’s professional premises;
·the father agreed that the child should spend time with the mother immediately after those interviews;
·periods of contact occurred during the somewhat protracted hearing of this matter (in three different sittings).
In response to a question from counsel for the ICL, the father said that he did not want “a relationship” with the mother but he would like to have “a friendship” with her. In answer to a subsequent question about a period of contact that had taken place he said:
I think the fact that me and [the mother] were able to sit down next to each other and speak, and you know, joke around and be happy, I think - I didn’t feel any - I never have felt any anger or anything about what happened with Mr S and stuff. Like I said, I’m happy for them. I felt that we could, you know, to a degree be friends and work it out. I’ve always said I’d like her to see her daughter. I’ve always encouraged it, if I could …[148]
[148] Transcript: Day 4 at pages 141 and 142. (The transcript says “jerk around”, but I am sure that is a typographical error resulting from the father’s occasional indistinct style of speaking.)
I considered that to be an expression of the father’s current view, although other evidence suggested that he was not always quite so accepting of the mother’s relationship with Mr S. However, it does suggest that the parties are now able to sit down in a friendly manner to discuss matters pertaining to their daughter, and I have some confidence that it will continue.
During her cross-examination, Ms N referred to a photograph of the mother and to the encouragement of phone calls with her. The exchange was as follows:[149]
Mr Fitzgerald: Does [the child] speak of her mother?
Ms N: She knows who she is. Like, [the father] always had a picture of her and he has always encouraged phone calls of …
Mr Fitzgerald: How do you know that?
Ms N: Because I was leaving there one day and [the mother] rang and he goes, “Come and talk to mummy,” and she went to the phone and it seemed to me like she knew who mummy was.
[149] Transcript: Day 5 commencing at the foot of page 210
That exchange also gave me confidence that the father will continue to facilitate and encourage the child’s relationship with the mother.
The likely effect of any change in the children’s circumstances
At paragraph 104 of his report the psychologist said:
[The child] would find any significant change confusing and difficult at first. She has already suffered considerable dislocation and disruption is her short life. She has started to adjust to separation from her mother and may not have a working memory of living with her. She would find separation from her father … confusing and difficult at first but could make this adjustment and flourish in her development if provided with the sensitive and attuned care and protection from family violence she needs.
Save for the last seven words (because I do not share the psychologist’s acceptance of the mother’s version of family violence in the parties’ relationship), I agree with what he says in that paragraph.
At paragraphs 107 to 109 of his report, the psychologist said:
107. [The child]’s need for secure, stable, and sensitive care and protection from harm is the paramount consideration in this case. The Writer’s view is that this need can be best achieved by an Order for her to live with the mother. If this recommendation is adopted, then she should be allowed time to make that transition without disruption. The issue of spending time with the father should be deferred until she has adjusted to that change.
108. Given the history of exposure to violence and dislocation, and taking into account her developmental needs, [the child] has insufficient capacity at this stage to cope with nights away from the home where she lives. Any consideration of overnight visits should be deferred for at least 12 to 24 months and should not occur until her circumstances are secure and stable.
109. As a means of facilitating spending time between [the child] and the father, the option of supervised contact at a contact centre is recommended for the safety and reassurance of all parties.
I note again that the psychologist stated that he accepted the mother’s account of the history as being more reliable, and many of the opinions expressed in his report proceed from that assumption.[150] Clearly, that also applied to his recommendations.
[150] Paragraph 93 of the psychologist’s report
Counsel for the father put it to the psychologist that his recommendations were “extreme” and he said:
It is. It’s a recommendation of, I agree, yes.
Subsequent to that, this exchange took place between counsel for the ICL and the psychologist:[152]
Mr Fitzgerald: … If the court found that she was not a credible witness - not simply she was unreliable or her veracity or accuracy was an issue, so not only her accuracy and her veracity was an issue, but she was just unreliable … that must create a concern of whether the court can be satisfied this child will have a secure, stable environment in the mother’s household. That’s correct, isn’t it?
The psychologist: Yes, it is.
Mr Fitzgerald: Equally - and they can be mutually exclusive - if the court found that the father’s observation of the mother and concerns about the mother being disinterested in the child and similar, that must also add into the question of whether the mother poses an inherent or latent risk. Isn’t that right?
The psychologist: Yes, it would.
Mr Fitzgerald: In what way?
The psychologist: Well, it - it would go to the question then of the appropriateness of disrupting [the child]’s placement with the father. I mean, that is a calculated decision that accepts it will be disruptive and it can only be in her interests if the benefits outweigh the disruption.
[152] Transcript: Day 6 at page 293
Clearly, the question whether the child’s placement in Tasmania should be disrupted is one that requires very careful consideration, because her strongest attachment is to her father and she has close relationships with the father’s extended family and friends in Tasmania.
The practical difficulty and expense of the children spending time with and/or communicating with a parent
The father gave evidence on Day 4 of the hearing that he had been giving consideration to a return to NSW and that he had spoken to the mother about it. At that time he was living with Ms M but he was not sure whether she would go with him if he went. When cross-examined by the mother’s counsel, he said:
I’m not saying that she would definitely go. She has all her family, everyone she knows here; she grew up here. She knows no one up there and she has no connections up there. I think if I was to do that to her, it would just be unfair.[153]
[153] Transcript: Day 4 at page 14
When he was asked by counsel for the ICL later that day whether he had a plan to return to NSW, he said:
There is ideas and slight plans, yes, but I just don’t want to be forced out of my home and be homeless in Sydney and put [the child] at risk. I don’t want to do that to her. [154]
[154] Transcript: Day 4 at page 142
He also told counsel for the ICL that he had discussed restarting his life in NSW, but shortly after that he added that his mother was “very hard to live with”.
When he gave further evidence more than two months later on Day 5, the father advised that he considered that a decision to move back to NSW to be a bad decision for himself and the child. He reiterated his earlier concerns about being homeless as follows:[155]
If I was to move there, I would leave behind a two-year lease on a stable place that’s, you know, basically refurbished. I would be put in a place with my mother, [who] I don’t really get along with, and I feel I would end up homeless again.
[155] Transcript: Day 5 at page 189
He went on to say that a move back to NSW would be stressful and difficult for the child, and expressed the view that her life in Tasmania had been stable for the first time.[156]
[156] Transcript: Day 5 at page 190
Clearly, if the parents are to continue living in NSW and Tasmania, there will be difficulty and expense involved in the child seeing the parent with whom she does not live on a regular and frequent basis. I note that the psychologist expressed a view that the father’s then proposal for the child to see the mother for school holidays would not be sufficient.[157]
[157] Psychologist’s report at paragraph 100
Unfortunately, neither parent will be particularly well off financially for the foreseeable future. The father relies totally upon Centrelink benefits and the mother’s household relies upon Mr S’s earnings as a trainee and upon Centrelink benefits.
In the mother’s proposals for face to face contact as set out at paragraph 14 above, she makes no provision for the payment of airfares between NSW and Tasmania. The father’s proposals for payment of airfares are:
·until the child is able to travel unaccompanied, he shall pay for his own return travel and shall accompany the child to and from NSW and the mother shall pay for the child’s return travel to and from Tasmania; and
·upon the child being able to travel as an unaccompanied minor the father shall pay for her travel from Launceston to Sydney and the mother shall pay for the child’s return travel from Sydney to Launceston in Tasmania.
It is encouraging to see that both parents are proposing that the child have regular electronic contact with the other parent. The mother proposes daily telephone contact, and the father proposes contact by telephone twice per week (or by Skype, if available). Both parties appear to be quite “computer savvy”, so I feel sure that it will not be difficult for them to ensure that the child keeps in visual contact with the absent parent by computer on a regular basis, irrespective of where she lives.
The capacity of the parents to provide for the children’s needs
As mentioned above, neither household is particularly well off financially. Notwithstanding that, I am confident that each of the parties will provide for the child’s physical and educational needs, within the limits of their finances.
I am satisfied that the father has good family and friend support systems in place to help him provide for the child’s needs. The mother does not appear to have such a supportive network, but it is pleasing to see that she has been accessed help from the Brighter Futures program and has been seeing her support worker on a regular basis.[158]
The attitudes of the parents to the children and to parental responsibilities
[158] See paragraph 21 of the Family Consultant’s report and her evidence about that program, commencing at the foot page 216 of the Transcript for Day 5.
I have some general concerns about each party’s attitude to the responsible parenting. However, those concerns must be seen in the light of the fact that in both the father and the mother were only 17 years old when the child was born and that at some time that they were effectively homeless, moving from one location to another quite frequently.
In my view, the mother displayed a greater lack of responsibility towards her child than the father. In this regard, I accept the father’s evidence that the mother left him in charge of the child on numerous occasions (including the time when she had a liaison with Mr S at a motel and the time immediately after separation). It seems to me that those were occasions when she put her needs and wants above the needs of her very young child.
The mother’s willingness to falsely accuse the father of serious matters (including very serious crimes) in order to strengthen her chances to have the child live with her is clearly yet another example of putting her own needs above those of the child. I do not need to repeat instances of where her version of events lacked credibility.
In my view, the father cannot be criticised for not wishing to return to NSW in circumstances which would render him and the child homeless.
Any family violence and family violence orders
This has been dealt with extensively above.
Should there be equal shared parental responsibility?
Both parties are now seeking orders for equal shared parental responsibility. In my view, that is appropriate because I have concluded that the mother’s allegations in relation to violence and abuse are false.
With whom should the child live?
It must be clear from everything that I have said above that it would not be in the child’s best interests for her to be removed from the father’s full-time care. Her strongest attachment is to her father and she has close relationships with the father’s extended family and friends in Tasmania. To remove her from that would indeed be both extreme and a last resort for a child of her age.
What time should the child spend with the other parent?
The difficulty in this question is posed by the difficult circumstances in which the parties and the child find themselves. That is caused by the combination of the distance between Tasmania and NSW and the parties’ relatively impecunious financial circumstances.
The orders that I will make are intended to maximise the time that the child spends with her mother, within the financial constraints of the parties. Those orders are set out at the start of these Reasons and the parties will notice that they are in large part very similar to what the father was seeking. In my view, they are self-explanatory.
I certify that the preceding two hundred and seventy eight (278) paragraphs are a true copy of the reasons for judgment of Roberts FM
Date: 22 August 2012
[34] Transcript: Day 1 at page 46
[56] See Transcript: Day 1 at pages 90 and 91
[151] Transcript: Day 6 at page 281
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