Pamplin & Galang
[2025] FedCFamC1F 89
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pamplin & Galang [2025] FedCFamC1F 89
File number: MLC 13899 of 2023 Judgment of: MCNAB J Date of judgment: 20 February 2025 Catchwords: FAMILY LAW – PARENTING – Where final parenting orders made in 2020 provided time between the father and the child graduating to five nights per fortnight and equal shared parental responsibility – Where the mother withheld the child and initiated proceedings following the child making disclosures regarding the father’s inappropriate behaviour – Where the disclosures were not investigated further by authorities – Where the mother did not seek a finding regarding the disclosures – Where the mother alleges that the child is at risk of emotional harm when in the father’s care –Where the parties are unable to cooperate together – Where the evidence is supportive of the child being at risk of emotional harm when in the father’s care – Where the child has behavioural issues – Where the father made significant and appropriate concessions during the hearing – Orders for time between the father and the child graduating to a single overnight. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61C, 61D, 64B. 65D. Cases cited: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Pickford & Pickford [2024] FedCFamC1A 249
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 117 Date of hearing: 18-22 November 2024 Place: Melbourne Counsel for the Applicant: Ms Agresta Solicitor for the Applicant: Creative Family Law Solutions Counsel for the Respondent: Mr Strong Solicitor for the Respondent: Coulter Legal Counsel for the Independent Children's Lawyer: Ms Damon Solicitor for the Independent Children's Lawyer: Clark Family Lawyers ORDERS
MLC 13899 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PAMPLIN
Applicant
AND: MR GALANG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for long-term decision making regarding X born in 2016 (“the child”) on the basis that:
(a)she notify the father of any such issues arising save for any health related issues;
(b)the father provide to the mother within 14 days any input he wishes by email to an address nominated by the mother; and
(c)the mother to make any decisions taking into account the input from the father and advise him of the decision within 7 days.
2.The child live with the Mother.
3.That the father spend time with the child as follows:
(a)from the date of this order:
(i)each alternate Saturday from 10:00am for such period as he is able to afford for up to 5 hours with such time to be professionally supervised at the father’s expense for eight occasions;
(b)from the completion of eight occasions of professionally supervised time until September 2026:
(i)each alternate Saturday from 10:00am until 5:00pm;
(ii)each Thursday in the week the father is not spending time with the child from 4:30pm until 7:30pm; and
(iii)any other time as agreed
with such time to be supervised by Ms B upon Ms B providing a sworn undertaking in the same terms as that sworn by Ms C on 8 May 2024.
(c)from September 2026:
(i)each alternate Saturday from 10:00am until 12:00pm on the Sunday; and
(ii)any other time as agreed.
with Ms B to be in substantial attendance.
4.The parties have telephone/video contact as initiated by the child when she is with the other parent for up to 30 minutes including on the child’s birthday if she is in the care of the other parent.
5.Pursuant to paragraphs 3(b) and 3(c) herein, changeover take place at Hungry Jack’s Family Restaurant in Suburb D with the changeover to be effected directly by Ms B or such other person as agreed in writing.
6.In the event that the child is unwell and unable to attend for time with the father, the mother will provide as much notice as possible and make up time will be offered.
7.The parties shall notify each other as soon as practicable of any significant medical illness or serious injury involving the child when in their care and authorise the other parent to speak with any health professional involved with the child AND neither party will refuse the assistance of a qualified medical professional, irrespective of whether that medical professional is a male or a female.
8.Both parents be at liberty to obtain any information regarding the child’s education and progress direct from the school including reports, newsletters, notices or orders for school photographers at their own expense.
9.The father and mother each be at liberty to attend any school function that parents normally attend with the father to advise the mother of his intention to do so no less than one day in advance.
10.The parties attend at E Medical Centre in F Street, Suburb G for the child’s general medical needs at first instance, save in the case of genuine emergency or impracticality.
11.The parents be authorised to provide copies of these orders to the child’s school and any treating professional.
12.Each parent will keep the other advised at all times of their contact details including telephone number and email address and notify the other parent as soon as practicable of any change in such information.
13.The father be and is hereby restrained from removing the child from her school.
14.The parties and their servants and agents are restrained from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party or any member of their immediate or extended family to or in the presence or hearing of the child and will remove the child from the presence of any third party doing so;
(b)assaulting, intimidating, molesting, harassing, threatening, stalking causing or threatening to cause bodily harm or otherwise committing family violence against the child and/or the other party;
(c)publishing on the internet, by email or other electronic communication any derogatory material about either of the parties and/or the child and/or extended family members; and
(d)quizzing or questioning the child about the goings on in the other parent’s home.
15.The mother be permitted to travel overseas to Country H with the child as follows:
(a)in each year while the maternal grandmother lives for up to four (4) weeks (in the case of a holiday) or up to six (6) weeks in the event of a family emergency;
(b)in the event of the maternal grandmother’s passing every alternate year for up to four (4) weeks (in the case of a holiday) or up to six (6) weeks in the event of a family emergency.
with the mother to provide to the father at least 60 days advance notice (save in the case of a family emergency when this will be as much notice as reasonable in the circumstances) of the intended date of departure, and written confirmation of the following:
(i)the locations to which the child will travel and with whom the child will travel, together with an itinerary including the airline;
(ii)the date upon which the child will depart from and return to Victoria;
(iii)the addresses and accommodation bookings at which the child shall reside and a telephone number on which the other party can communicate with the father during the travel period;
(iv)in the event that travel is to take place at a time when the child would normally be with the father, a proposal for make-up time equivalent to the time lost to take place within four months of the child’s return (preferably during school holiday periods), unless otherwise agreed; and
(v)the proposal for telephone time during the intended travel period for the child with the father.
16.For the purpose of Order 15 hereof, the mother is not to travel with the child to countries that are not signatories to the Hague Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’) (other than for aircraft stop overs on the way to a country that is a signatory to the Hague Convention).
17.The mother be authorised to obtain a passport or renewal of Australian passport for the child when necessary to do so, without first obtaining the consent of the father.
18.The child’s passport remain in the mother’s possession.
19.All communication between the parties pursuant to these orders, including information regarding the welfare of the child, is to occur between the mother and the father’s nominee being Ms B by way of AppClose.
20.The parties be authorised to provide a copy of these reasons for judgment and the Family Report of Dr J dated 3 May 2024 to the child’s treating psychologist.
21.Within 14 days of the date of this order:
(a)the applicant shall notify the Court of any application for costs accompanied by a written submission limited to (5) A4 pages together with a schedule of costs claimed;
(b)within 14 days thereafter the respondent file any submission in response limited to (5) A4 pages; and
(c)any application for costs be determined on the papers in chambers.
22.The order for the appointment of the Independent Children’s Lawyer be discharged 30 days from the date of this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pamplin & Galang has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCNAB J
INTRODUCTION
This matter involves the applicant mother, Ms Pamplin born in 1992 (“the mother”) and the respondent father, Mr Galang born in 1958 (“the father”). The parties seek parenting orders in respect of the child, X born in 2016 (“the child”). The child is represented by an Independent Children’s Lawyer (“ICL”).
At the commencement of the hearing, the mother proposed orders in substance that she have sole parental responsibility for the child and the child spend 5 hours with the father per fortnight with the time to be supervised by one of the adult children of the father or an adult familiar to the child as agreed. The father proposed that the parents have joint decision-making authority in respect of the child and that the child spend time with him 5 nights per fortnight and time during the school and long summer holidays.
At the conclusion of the hearing of evidence and prior to closing submissions being delivered, the father’s amended proposal was in substance that the mother have sole responsibility for long term decision making regarding the child (subject to consultation with the father save in respect of health issues). As to spend time arrangements, he proposed that the child spend each alternative Saturday from 10:00am to 5:00pm and commencing 13 February 2025, the child spend time with him in the alternate week when she is not spending time with the father on the Saturday from Thursday at 4.30pm until 7.30pm. It was also proposed that from 2026, the weekend time commences at 10:00am Saturday and concludes at 12:00pm Sunday. It was proposed that the child’s time with the father be supervised by the father’s wife, Ms B.
The mother’s final proposal regarding spend time arrangements was:
3. That the father spend time with the child as follows:
a. from the date of this order until the conclusion of the 2025 school year:
i.on a monthly basis for up to 4 hours with such time to be professionally supervised at the father’s expense;
ii.any additional time as may be agreed in writing subject to the requirement of supervision at all times.
b.from the conclusion of the school year 2025 until the conclusion of the school year 2026:
i. each alternate Saturday from 10:00am until 5:00pm;
ii. each Thursday from the conclusion of school until 7:30pm;
iii. any other time as agreed
with such time to be supervised by [Ms B] upon [Ms B] providing a sworn undertaking in the same terms as that sworn by [Ms C] on 8 May 2024.
c.from the conclusion of the school year 2026 the time continue in the same rotation as Order 3(b)(i)(ii) and (iii) save that the requirement for supervision is suspended and [Ms B] be in substantial attendance.
Given the terms of the final proposals, which involved a substantial change of position by the father, which was appropriate given the course of the evidence and the recommendations of the Family Report writer, the issues for determination are:
1)whether the father initially spends monthly time with the child or time each alternate week;
2)the progression of time, including whether such time eventually graduates to overnight time between the father and the child; and
3)whether professional supervision is necessary in the initial period of spend time between the father and the child and whether the father’s wife is an appropriate supervisor.
BACKGROUND
The background to the dispute between the parties is important as the circumstances of the parties commencing a relationship, becoming married or the mother participating in what she thought was a marriage ceremony (which is disputed by the father) and the way the father conducted himself during the course of the relationship goes to explain the very difficult position that the parties and the child are now in.
The mother was born in Australia and is a citizen of Australia and Country H.[1] The mother grew up in Country H and first moved to Australia in 2008 to complete her secondary education before emigrating to Australia in 2011. She commenced her tertiary studies in 2011.[2] The parties met in around late 2012, when the mother was 20 years old and the father approximately 54 years old. The mother was studying AA Language and the father was her teacher before he began tutoring the mother.[3]
[1]Mother’s trial affidavit filed 23 October 2024 ‘Mother’s affidavit’ at [3].
[2] Father’s trial affidavit filed 6 November 2024 ‘Father’s affidavit’ at [30]
[3] Mother’s affidavit at [13].
In 2013, the mother converted to the father’s religion and became more involved with the father where she says he was instrumental in teaching the mother the basic tenants of his religion.[4]
[4] Mother’s affidavit at [13].
The mother states that the father’s involvement in her life gradually increased and he taught her to drive, brought plates of food to her and she viewed him as a “kind uncle”.[5] She states, however, that the father would make inappropriate advances towards her and she regards the conduct of the father during this time as him ‘grooming’ her.[6]
[5]Mother’s affidavit at [15].
[6]Mother’s affidavit at [16]-[17].
The father was born in Country K having commenced living in Australia in 2003. The father is an Australian citizen and Country K citizen and is currently employed as a tutor teaching AA Language. The father holds tertiary qualifications which he attained in 2000. He also holds two further qualifications which he obtained in 2012 and 2014 respectively.[7]
[7]Father’s affidavit at [18].
The father married Ms B (not a party to these proceedings) in 2001 and they remain married.[8]The father has eight children, including the child subject to these proceedings, with four of them now adults.[9] The children of the marriage between the father and Ms B are aged 20, 19 and 13 years old. The remaining children are from the father’s relationship with his first wife and they are aged 37, 36, 34 and 26 years old.
[8]Father’s affidavit at [21].
[9]Father’s affidavit at [19].
The father denies any allegation that he used his position as a tutor to groom, or otherwise take advantage of, the mother. He gives evidence that he met the mother when he was teaching and that the mother was struggling with her language course and she requested that he provide her with extra tuition classes.[10] The father says that the tutoring occurred in public places and he was conscious of the significant age difference at the time.[11] Within this context, he states that the relationship progressed naturally with both he and the mother mutually pursuing and engaging in the relationship[12] and that he was then approached by the mother with the proposition of entering into a relationship and starting a family, notwithstanding that he was married, which he was agreeable to.[13]
[10]Father’s affidavit at [32].
[11]Father’s affidavit at [34].
[12]Father’s affidavit at [35].
[13]Father’s affidavit at [36] and [45].
The mother offers a different account of the parties entering into a relationship where she alleges that when the father was driving her home the father asked her to repeat words in AA Language and after she says that she naively complied, the father informed her that the words now meant she was his wife before driving to a motel and sexually assaulting her.[14] The mother says that after telling the father that she did not believe that they were married, he took her to a building in the middle of the night with other men present, including a religious leader, for a marriage ceremony. She said she felt pressured to go through with the ceremony, albeit she was told that they would not make a paper certificate to protect the father from accusations of polygamy.[15]
[14]Mother’s affidavit at [17].
[15]Mother’s affidavit at [19].
Shortly after the alleged marriage ceremony, the child was born and the mother gives evidence that the birth of the child was distressing. She says that during the birth of the child, the father was more concerned with “telling the nurse to ‘stitch me up tighter’ for his own pleasure”. The mother alleges that she had lost almost two litres of blood, but the father refused her medical care as the only doctor that was available at that time was a male doctor and the father accused her of being immoral and not caring if men saw her body. She states that the hospital refused her a post-natal visit at home due to it being too high risk for the hospital because of the father’s presence.[16] The father denies this and says that he was supportive of the mother throughout the pregnancy and it was the mother’s preference to have a female doctor and as such he “politely asked” whether there was a female doctor available, otherwise he had no issue with a male doctor if necessary.[17]
[16] Mother’s affidavit at [27].
[17]Father’s affidavit at [152].
The mother deposes to the relationship between her and the father as being marked by family violence perpetrated on her of various forms, however, mostly in the form of highly controlling behaviours where the father made demands for sex and required that he be made aware of what she was doing to an extreme extent.
The father denies this stating that during this time the mother was suffering from mental health issues including anxiety for which she was engaged with a psychologist, Dr L.[18]
[18]Father’s affidavit at [50].
The father says that the relationship between the parties deteriorated in 2018 and that thereafter the mother made threats to self-harm and harm him.[19] The mother states that in around August 2018 the parties separated and she obtained a religious divorce shortly thereafter.[20]
[19] Father’s affidavit at [59].
[20]Mother’s affidavit at [9].
The question of what occurred and how the parties conducted themselves at the commencement of the relationship does not have to be finally determined, however, the fact that the mother was so much younger, presented as naive (and I accept that she was a long way from any family) and that the father had an established family and was married has led to intense conflict between the mother and father. The position for the mother is that she has had to share parenting with the father and his family, who are a large group and who passionately support the father and do not support her.
Procedural Background
On 6 August 2018, the mother made an Application for an Intervention Order listing herself and the child as affected family members.[21] On that same date, the father commenced proceedings in the Federal Circuit Court of Australia (as it then was) seeking a recovery order and parenting orders.[22]
[21]Father’s affidavit at [60].
[22] Father’s affidavit at [61].
On 12 September 2018, orders were made by consent before Judge McGuire (as his Honour then was) for the child to live with the mother and spend time with the father for a block of two hours, three times per week.
The father says that between late 2018 and mid-2019, the mother failed to facilitate time between the father and the child in accordance with the orders.[23] On 19 June 2019, the mother filed an Amended Application seeking to relocate to Country H with the child.
[23]Father’s affidavit at [68 (d)].
On 30 November 2020, the matter was listed for final hearing before Judge O’Shannessy where final orders were made by consent which provided that the child spend time with the father graduating to five nights per fortnight. The mother gives evidence that she agreed to orders in those terms as she was extremely concerned that she may lose custody of the child because she may be considered a flight risk.
The parties’ evidence of what occurred following the making of these orders greatly differ. The father says that his time with the child has progressed well without any notable issues and that whilst he concedes that the child has been confronted with issues at school (which are dealt with below), he denies that this has been as a result of his actions and/or care.[24] Conversely, the mother gives evidence that over the course of the past two years the child has been growing resistant to spending time with the father, with such resistance growing in intensity in 2023.[25]
[24]Father’s affidavit at [76].
[25]Mother’s affidavit at [58].
In around 2021, the father made allegations regarding a male friend of the mother and the child was requested to participate in a SOCIT interview with the investigation not being pursued further.[26]
[26] Mother’s affidavit at [64]
The mother states that the child made disclosure to her, a family friend, the maternal grandmother and the Department of Families, Fairness and Housing (“DFFH”) that the father was imposing inappropriate pressure on the child in his household.[27] This includes:[28]
a.[Mr Galang] is present with her in the shower when she bathes and insists not only on washing her but also touching her on the breasts, the bottom, and between her legs;
b.[Mr Galang] goes into the toilet with her and touches her between the legs- not washing, wiping or assisting, and she acted out what she meant;
c.[Mr Galang] insists on sleeping with her in his bed, if she goes to sleep in her own bed she wakes up in his bed, and she is not allowed to choose to sleep in her own bed;
d.She said in her own words that she finds this “disgusting, weird and uncomfortable” and that it makes her feel like screaming.
[27] Mother’s affidavit at [70]; Affidavit of Ms M filed 23 October 2024 at [73].
[28] Mother’s affidavit at [72].
The mother withheld the child following these disclosures and in late 2023, the father attended upon a police station to speak with SOCIT, who, after interviewing the child, were unable to identify anything which constitutes an offence.[29] The mother says that the child did not attend school from mid-October 2023 until mid-December 2023 and was instead home-schooled.[30]
[29] Mother’s affidavit at [80].
[30] Mother’s affidavit at [83].
The mother filed an Initiating Application on 28 November 2023 seeking sole parental responsibility for the child and for the father, in the interim, to spend professionally supervised time with the child. On 14 December 2023, Senior Judicial Registrar (“SJR”) Sudholz made orders suspending parts of the final orders dated 2 December 2020 and for the father to spend professionally supervised time with the child.
The matter then came before SJR Conlan on 24 January 2024 whereby orders were made on 25 January 2024 for the father to spend unsupervised time with the child. The mother says that at the time that she was informed of the orders made by the Court, she was waiting for the child to complete a therapy session. The mother deposes to believing it was a good idea to inform the child of the orders whilst she was attending upon her therapy session. Consequently, she interrupted the child’s therapy session to inform her of the orders. At the end of the session, the therapist spoke with the mother and told the mother that the child had made a disclosure which she was mandated to report[31]
[31] Mother’s affidavit at [88].
The child attended upon a police station and participated in a video and audio recorded evidence (VARE) interview with SOCIT. The mother says that she was advised to withhold the child until the investigation was complete. Shortly thereafter the investigation was closed as a criminal offence could not be established.[32] DFFH also concluded that the matter would be best handled in this Court.[33]
[32] Mother’s affidavit at [97].
[33] Mother’s affidavit at [98].
On 8 March 2024, orders were made by SJR Conlan for time to be reinstated between the father and the child each Saturday from 10:00am-5:00pm to be supervised by the child’s eldest sister, Ms C, aged 37-year-old. The mother says that there were difficulties arising from Ms C being the supervisor of the child’s time with the father and the mother suspended time in late April 2024 until Ms C signed an undertaking on 8 May 2024.[34] The mother says that since then, there has been no major incidents arising from the father spending time with the child.
[34] Mother’s affidavit at [112].
Whilst there are allegations of child abuse raised by the mother against the father in the course of these proceedings, the mother did not seek to prove those allegations and did not rely on allegations of abuse in order to support the orders she ultimately sought.
There was no application or submission made, when it was raised with the parties at the commencement of the hearing, that the matter should be stayed or not proceed noting that the final orders made on 2 December 2020 had only been partially suspended.
EVIDENCE
By way of her Outline of Case, the mother relies upon:
(a)Affidavits of Ms Pamplin filed 23 October 2024 and 11 November 2024;
(b)Affidavit of Ms M filed 23 October 2024;
(c)Further Amended Application filed 18 September 2024;
(d)Affidavit of Dr J filed 18 September 2024;
(e)DFFH Report filed early March 2024;
(f)Affidavit of Ms N filed 4 March 2024;
(g)Affidavit of Ms O filed 29 January 2024;
(h)Affidavit of Ms P filed 19 January 2024;
(i)Notice of Child Abuse, Family Violence and Risk filed late November 2023; and
(j)Subpoenaed material: Q School, S Afterschool Care, Victoria Police, SOCIT, R Therapy, E Medical Centre, Dr T, U Medical Centre, V Medical Centre, Dr L, W Psychology and Dr T, Y Medical Centre.
By way of his Outline of Case, the father relies upon:
(a)Affidavit of Mr Galang filed 6 November 2024;
(b)Affidavit of Ms B filed 6 November 2024;
(c)Affidavit of Ms C filed 6 November 2024; and
(d)Affidavit of Ms Z filed 6 November 2024.
The Independent Children’s Lawyer did not file an Outline of Case.
Both parties filed lengthy and detailed affidavits as evidence in chief. Much of the evidence in the affidavits went to the background of the relationship, allegations that the father was consistently coercive and controlling of the mother and child and allegations that the mother suffered from poor mental health. This is notwithstanding that the parties already prepared for a final hearing in 2020 where those matters were raised and were resolved by consent orders with partial determination. The mother has explained why she consented to orders in 2020 without a hearing and without there being any adjudication on the merits of the claims made in that proceeding. Much of the evidence provided was relevant to the question of determining the allocation of parental responsibility. Given that issue has been resolved it is unnecessary to deal with each matter relevant to that issue. I am not required to resolve every controversy raised by the parties’ evidence or to refer to all the evidence raised by them. I refer to that evidence which is relevant to the issues that must be determined by the Court (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]. See also Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378). I also bear in mind what was said by Austin and Williams JJ in Pickford & Pickford [2024] FedCFamC1A 249 at [87]:
87…It is apposite to observe how judges need not make findings to resolve contested facts unless the findings authentically influence the outcome. In fact, the High Court of Australia has expressly cautioned against unnecessary factual findings in the context of risk assessment (M v M (1988) 166 CLR 69 at 76–77) (“M v M”). So has this Court (Eastley & Eastley (2022) FLC 94-094 at [18] and [31]) (“Eastley”).
The mother was cross-examined over the course of two days and gave her evidence in a clear manner and there was no suggestion that she was being untruthful or evasive. She appeared to be well attuned to the needs of the child and the possibilities arising from the child spending time with the father. The maternal grandmother was also cross examined. She appeared to be stoic, and a tremendous support to the mother and the child both when the child was born and presently. She presented her evidence in a calm and measured way and I accept her evidence regarding the father and his behaviour both towards her and the mother.
The father was cross-examined with the assistance of an interpreter when he required such. It did appear that he gave answers which he thought the Court would look favourably upon. He had a tendency to try and talk over those questioning him, not answer questions and place himself in the best possible light. He tended to argue with counsel for the mother and often failed, or refused to answer, questions other than on his own terms as opposed to responding to what was asked. I do not accept that this was because of any difficulty with language (the father was assisted by an interpreter) or because the questions were difficult to follow or argumentative in their terms as they were put to him. He sought in the witness box to take control of the proceeding and impose his views and he gave every indication of behaving in a manner which has been raised against him by the mother. The Family Report writer’s assessment of the father’s presentation at [157] of her report aligned with how he presented when giving evidence:
157[Mr Galang] presented as a highly intelligent and articulate man. His engagement though eager and solicitous, impressed as highly performative throughout the interview and observations, with high positive impression management (i.e., presenting oneself in an overly positive light). People who impression manage to this extent are often blindly uncritical of their own behaviour and insensitive to negative consequences of their behaviour, tending to minimise the negative impact on others and on themselves. This is consistent with [Mr Galang’s] presentation at interview. He views himself as playing no role in [the child] or [the mother’s] difficulties. He views himself as faultless and a far superior parent to [the mother]. These issues are major obstacles to cooperative coparenting.
The father's concession that it is in the child's best interests for the mother to have sole parental responsibility for the child (without admitting any of the allegations of abuse or controlling or co-coercive conduct) is an acknowledgement that the parties cannot cooperate in the interests of the child because of the background of the intense distrust between the parents. The remaining unresolved conflict and the ongoing tension between the parties forms the basis of concerns of ongoing risk to the child by her being exposed to that conflict.
Ms B was also cross-examined. Her answers were mostly aligned with the father who she strongly supported. Ms B is an experienced educator, however, she did tend to minimise the very significant behavioural issues that the child was experiencing at school, notwithstanding her professional training and experience. She did give evidence during the hearing that the father would discuss what he thought was the best care arrangements for the child at the dinner table with the child present. She did not present with any particular animosity towards the mother and she gave the impression of wanting to do the best for the child in what was a difficult situation.
The father’s eldest daughter, Ms C, who was the supervisor for the father’s time with the child gave evidence. She was a truthful and frank witness. Ms C is married with children of her own and is also an educator. She was strongly supportive of the father, although she was not happy that the father had a relationship and a child with the mother. She has tried to support the father and the child by acting as supervisor but was not able or prepared to continue to do so as she had her own family to support and spend time with.
The Family Report writer gave insightful evidence which was consistent with the terms of her Family Report. Her oral and written evidence was helpful to the Court and I expect the parties.
RELEVANT LAW
These proceedings were heard after 6 May 2024, so the amendments to the Act enacted by the Family Law Amendment Act 2023 (Cth) apply.
In deciding whether to make a particular parenting order in relation to the children, I must regard the best interests of the child as the paramount consideration.[35]
[35] Family Law Act 1975 (Cth) s 60CA.
Section 60CC(2) of the Act sets out the list of matters that the Court must consider in determining what is in the children's best interests.
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation (s 60B). The objects of Part VII of the Family Law Act 1975 (“the Act”) are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child of 20 November 1989.[36] My decision is guided by those objects.
[36] Family Law Act 1975 (Cth) s 60B.
The Act confirms that safety includes safety from family violence, abuse, neglect or other harm.[37] Family violence and abuse are defined in the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”.[38] Examples of such behaviour include assaults, repeated derogatory taunts, intentionally damaging property, unreasonably withholding financial support and preventing a family member from keeping connections with his or her family and friends.
[37] Family Law Act 1975 (Cth) s 60CC(2)(a).
[38] Family Law Act 1975 (Cth) s 4AB(1).
The Explanatory Memorandum indicates further that “other harm” allows me to consider whether these children are affected by issues such as inter-parental conflict.[39]
[39]Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 20 at [36].
“Safety” is not defined in the Act. I note that the Explanatory Memorandum to the Family Law Amendment Act 2023 states that s 60B(a) of the Act is “intended to make it clear to all users of the Family Law Act that safety is a fundamental consideration when considering the best interests of the child.”[40] It goes on to state that Courts should consider “what arrangements would encourage or support a removal, reduction or avoidance of harm”.[41]
[40] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 18 at [17].
[41] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 19 at [30].
In considering these matters I must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child; and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.[42]
[42] Family Law Act 1975 (Cth) s 60CC(2A)
Parental responsibility for children is vested in their parents (s 61C(1)), regardless of whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
The parties have agreed on orders allocating sole decision making authority to the mother subject to her consulting with the father regarding long term issues save for health matters.
CONSIDERATION
Section 60CC(2)(a)
What arrangements would promote the safety of the child (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child)
Section 60CC(2A)
In considering the matters set out in paragraph (2)(a) the Court must include consideration of any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child) and any family violence order that applies or has applied to the child or a member of the child’s family
Since the final orders were made, and shortly prior to the final hearing, significant time has been directed to the allegations that the father had inappropriately touched the child. These allegations were subject to investigation but were not pursued further by authorities or the police. Counsel for the mother did not press the Court to make a finding regarding the matter, submitting that it was not open for such a finding to be made on the evidence. Counsel for the ICL directed the Court to Isles & Nelissen (2022) FLC 94-092 where the Full Court held that in matters involving allegations of unacceptable risk and where the Court is not satisfied that on the balance of probabilities a positive finding can be made nor can it be rejected, the notion of risk is a prospective one whereby the Court is to consider all of the circumstances, including historical conduct, to determine whether the evidence is strong enough to establish whether there is a possibility of future harm arising.
The father strongly denies all allegations that he has inappropriately touched the child. He says that he resides in the same house with his wife and other three children where they have not witnessed such behaviour.[43] Understandably, he and his family are extremely concerned that the allegations have been raised and the Court accepts that the father was entitled to defend himself against those allegations. The Court makes reference to the allegations, but as no finding is being sought and it is not put that the father is a risk to the child because he may sexually abuse her, the Court only sets out the narrative of events surrounding the making of the allegations so as to provide context.
[43] Father’s affidavit at [112]-[113].
When the first tranche of allegations were raised in late 2023, and upon request of this Court after proceedings had commenced, the notations of SJR Sudholz’s orders of 14 December 2023 recorded:
O.The following information was received by the Department of Families Fairness and Housing this day:
Dear Associate
Thank you for your information request pertaining to [the child].
Please refer to the short form response provided to the court on 29 November 2023 for background.
Following the receipt of a report [in] September 2023, [the child] is currently subject to a child protection investigation.
SOCIT has interviewed [the child] and are not taking any further action in terms of sexual allegations raised. [the child] has not made any clear disclosures regarding [the father] to constitute a sexual offence. [the father] denies all sexual allegations made in relation to [the child]. The department are unable to substantiate that [the father] presents a sexual risk to [the child] at this time.
The department has interviewed/ spoken with [the mother], [the father] and [the child] on several occasions. [the child] has advised the department that she wants to have contact with her father, however she feels that [the father] is too overbearing/ overprotective and likes her own space when she is in his care, which [the child] feels that [the father] does not allow. The department are also aware and mindful of cultural issues at play. The department has recommended that [the father] engage in a parenting support.
The department are also conscious to the fact that [the child] is exposed to the parental acrimony and conflict from both parents and are concerned about [the child’s] emotional well-being.
The investigation is ongoing.
I hope this information is of assistance, please advise if you require anything further.
Kind regards, […]
Practice Leader- Family Law Liaison
Commonwealth Operations, Statewide Children and Families
Community Operations and Practice Leadership
Department of Families, Fairness and Housing
There was a further notation to the orders which recorded information provided by DFFH to the Court on 29 November 2023 that a report had been received in late September 2023 which outlined that the father was alleged to have placed his hand over the child’s mouth and nose to prevent her from crying and wiped her bottom after the toilet, making the child uncomfortable. There was a secondary report received six days later in September 2023 which set out concerns that the father was forcing the child to sleep in his bed which reportedly made the child anxious and angry. There were then interviews conducted with each parent, and although noting that the investigation remained ongoing, DFFH stated that it was likely to be the case that the investigation will proceed to closure with this Court being identified as the most appropriate jurisdiction to manage the dispute, with DFFH not holding significant concerns of either parent at that time.
SJR Conlan then made orders on 25 January 2024 for graduated time increasing to overnight between the father and the child. Around the time those orders were made, the child was attending therapy with Ms N. Ms N’s notes from late January 2024 recorded that during her session with the child, the mother pulled Ms N aside informing her of the orders which had been made in this Court. Ms N then deposes to thinking it was appropriate to inform the child of the orders whilst she was in a therapeutic setting, whereby upon being advised of the orders, the child stated that she could cope with daytime visits but that she did not wish to spend overnight time with the father. During this discussion, Ms N says that the child made a comment about the father coming into the toilet, which then prompted Ms N to ask the child if she had been touched anywhere by the father, with the child saying yes, pointing to her vagina. Ms N immediately informed the mother that she must report the disclosure and she contacted 000 and, on the suggestion of the police, attended the police station with the mother and the child.[44]
[44] Exhibit R9.
There was a VARE interview with the child in early February 2024, and the mother says that the investigation was closed with the matter deferred back to child protection.[45] A report produced by DFFH in early March 2024 noted that at the VARE interview the child disclosed that the father touched her on the vagina whilst she was in the toilet before concluding that “Child Protection through the current investigation have determined there is insufficient information to substantiate harm against [the child] at present.”
[45] Mother’s affidavit at [97].
In her affidavit the mother is highly critical of the handling of the child’s disclosures where she rejects any notion that the disclosures arose out of different parenting styles and that the allegations have been minimised and paraphrased inappropriately.[46] The mother says at [133] of her affidavit that:
133…I want to state for the record that I do not understand how the repeated touching of a child’s private parts in secrecy and for no practical reason could be seen as anything other than ‘contrary to community standards’ and that this act is inherently of a sexual nature… This is also what I told police after they concluded their investigation with such disappointing brevity…
[46] Mother’s affidavit at [132].
The mother also makes allegations of the father’s conduct towards her during their relationship, which she says included sexual abuse.[47] This includes the incident described at [13] herein and further instances where she says that the father forced her into sexual acts.[48] Whilst she says that this behaviour has now ceased, she alleges that it is a part of a historic patten of sexual misconduct by the father where Victoria Police material shows that he was accused of an offence in 2004.[49] The maternal grandmother also gave evidence that the father had behaved inappropriately towards her when he was visiting Country H with the mother and the child by peeling bedding off the maternal grandmother without warning. I accept her evidence that he did this and it was plainly inappropriate behaviour, however, that is something different to the abuse of a child.
[47] Mother’s affidavit at [7].
[48] Mother’s affidavit at [20].
[49] Exhibit A9.
Notwithstanding the above, during closing submissions, counsel for the mother made it plain that the mother is not seeking any finding that there is sexual abuse occurring and although the mother does not wish to minimise what the child has disclosed, and she is of the belief that there were likely boundary issues which were crossed, it is not the focus of her case. As the mother did not press for any finding that the father had sexually abused the child, I do not make a finding about risk to the child of sexual abuse by the father. Having regard to the evidence of disclosures by the child and from DFFH, I find it likely that these are instances of the father not understanding boundaries which have been expressed by the child in relation to her seeking more independence. This was canvassed by the Family Report writer who noted that when interviewing the child “The issue of toileting privacy appears resolved now, to [the child’s] great relief”.[50]
[50] Family Report of Dr J dated 3 May 2024 ‘Family Report’ at [119].
Whilst I make no findings in relation to those allegations, the evidence does tend to show that the father has been over-intrusive, does not allow the child space, is not attuned to the child’s needs and openly denigrates the mother to the child. During closing submissions, counsel for the mother submitted that it is the unacceptable risk of emotional harm, more than the possibility of sexual abuse into the future, which is most concerning. At [119] of her report, the Family Report writer says:
119Due to the concerns about [the child’s] views being shared openly with the audience for this Report, the writer has elected to summarise the central points of [the child’s] interview without direct quotes:
–[the child] appears to believe her father lies about what happens at his home;
–[the child’s] report raised concerns that she is not allowed to talk freely about her mother at her father’s home due to her father’s displeasure at same, which is likely upsetting for [the child];
–There appears to be a perception of pressure on [the child] to mask negative feelings in her father’s care for his emotional benefit and to avoid harsh parenting responses;
–[the child] appears to have had exposure to her mother’s negative narrative about the parent relationship which she has absorbed as fact, possibly contributing to negative expectations about her father;
–[the child] appears to have had exposure to very harsh denigration of her mother by her father, which is highly distressing for [the child];
–[the child] appears highly protective of her mother and fearful of father’s reaction to sharing her views
…
In her observation of the father with the child, the Family Report writer noted that the child sought reassurance by the Family Report writer that she would remain with her during the session.[51]
[51] Family Report at [121].
The Family Report writer sets out that the father entered into the room for the observation carrying a bag and suitcase filled with toys and activities and upon embracing the child when they met, he gifted her a large doll and insistently showed her all the features of the doll.[52] Then, after asking the child to dance with him, the father presented her with more gifts.[53] Before the observation ended, the father produced further toys and sweets which he presented to the child, including money to entice the child to do well at school.[54]
[52] Family Report at [121].
[53]Family Report at [123].
[54] Family Report at [125].
In general, the Family Report writer noted that the father presented during the session as somewhat manic and began asking the child questions for the purpose of sharing the information with the Family Report writer, with the father turning to the Family Report writer after every answer and repeating what the child had said.[55]
[55] Family Report at [122].
It is uncontroversial that the child is struggling at school, particularly in relation to behavioural issues. The child’s school attempted to address this by reducing the length of the child’s school days,[56] however, the child continued to experience issues, including ‘meltdowns’ which would require two to four staff to manage, which, if unsuccessful, the child would be taken to the principal’s office whereby, on occasion, the mother would have to come collect the child from school.[57] The mother gives evidence that the school informed her that these incidents were occurring daily, sometimes multiple times a day.
[56] Mother’s affidavit at [43].
[57] Mother’s affidavit at [45].
A report from the school psychologist dated late May 2023 noted:[58]
[58] Exhibit ICL3.
[the child] is currently attending [Q School], where a therapeutic approach is taken for children with escalated behaviour. [the child] displays a range of challenging behaviours that are severe, deviant and beyond classroom control. [the child’s] persistent and challenging behaviours in the classroom include:
•Physically aggressive, including hitting, pushing and intimidating her peers and adults
•Constant opposition and refusing to follow instructions or participate in table-top activities or classwork
•Ripping up, scribbling on, and scrunching her work
•Throwing items in the classroom, including classroom furniture, stationery items, and schoolwork
•Absconding from the classroom environment without permission
•Verbally aggressive, including yelling and shouting in the classroom
•Significant dysregulation and meltdowns, including crying, screaming and throwing herself onto the ground
•Withdrawal in the classroom environment
•Significant difficulties with expressing and regulating her emotions
•Difficulties with staying seated in the classroom
•Unable to follow classroom expectations and the group plan
•Unable to focus on a task for more than a few minutes at a time
[the child] displays these challenging behaviours multiple times a day. The severity and frequency of [the child’s] behaviours significantly impacts on her ability to learn and function within a mainstream school setting, thus warranting her inclusion in a specialist setting. However, placement in a withdrawal setting is contraindicated at the present time as [the child] has slowly started to develop a sense of belonging at the school and building relationships with key staff, providing her with stability, routine and structure. She continues to find it challenging to cope with the demands of one educational setting, and will evidently find it very difficult to cope with another educational setting. Therefore, a placement in an alternate setting will not be beneficial nor an appropriate option for [the child] at this point in time.
Consonant with what the Family Report writer observed, when the father attended parent-teacher meetings, the mother says that the principal would have to be present alongside the female staff due to difficulties the staff had with managing the father and the principal observed that the father gave the child money, chocolates and presents during the interview.[59] The mother states that it was addressed with the father that this was inappropriately rewarding bad behaviour. The father also gave evidence that in response to being called into the school regarding the child’s uncontrollably disruptive behaviour, he gave the child a laptop which was beyond the means of what the mother could afford. The father acknowledged this present when giving evidence and did not appear to think that this might present a problem for the mother or the school in managing the child. It should be noted that the father gave evidence that the mother had cavilled with efforts by the school to manage the child.[60]
[59] Mother’s affidavit [53].
[60] Father’s affidavit, annexure [MG]-07.
The mother says that since the implementation of the current orders and the stabilisation of the dispute between the parties, that the child’s behaviour has improved at school. In this respect, an email was provided by the mother from the child’s teacher dated mid-October 2024 where the teacher remarks that the child “has really come out of her shell over the past term or so” and that she has made “great progress” in communicating her feelings and expressing her needs, being a “big step forward from where we were [earlier in the academic year]”.[61]
[61] Exhibit A3.
The emotional risk to the child by the father also arises from his denigration of the mother and coaching of the child. This is canvassed by the Family Report writer where she says:
146[the child] presents as a child under significant emotional stress. She was reluctant to share information and conveyed a sense of hopelessness and fatigue about yet another professional interview about her family. This is unsurprising given it was her ninth interview with different authority figures in six months. She has expressed to her counsellor that she feels older than her years, and her interview suggested she has been overexposed to adult conflict and issues that have overwhelmed her capacity to cope for many years. This assessment raised concerns about exposure to negative information about the other parent in both homes, though the information provided by [the child] suggested the father’s conduct in this regard is more damaging to [the child] than the conduct of the mother.
(Emphasis added)
The mother gives evidence that the father denigrates her and her family members to the child including calling the mother a “pig”, “rubbish” and “bitch” and the maternal grandmother “Evil Snake” and “[Ms M] Evil”. The mother deposes to the child telling her that the father would call her “Mr Pig O” and “Mr Fat O” and that the child was not allowed to refer to the mother as “mama” in his home. The mother says that the child would tell her that this hurt her feelings and made her feel alone and scared.[62] In relation to these proceedings, the mother alleges that the child has told her that the father subjects the child to tirades about the court proceedings. The mother gives evidence that the child feels constantly worried and scared for the mother because of this.[63]
[62] Mother’s affidavit at [61].
[63] Mother’s affidavit at [62].
The mother states that the father also interrogates the child regarding where they go, what they do, who they are with, who the mother’s friends are and whether she spends time with men and the father is generally controlling of the child including what she wears and how she looks.[64]
[64] Mother’s affidavit at [69].
The mother gives evidence that she was subjected to family violence throughout the relationship with the father and subsequent to separation. She alleges that this included, coercive control, sexual abuse, financial abuse and psychological abuse.[65] The mother says that during the relationship the child was exposed to the family violence perpetrated on her by the father.[66] Whilst this was not the focus of the mother’s case during the final hearing and I am unable to make findings in relation to certain incidents (including where she says the father sexually assaulted her at a motel) based on the evidence before me, I have regard to the general instances of family violence that she says was perpetrated by the father.
[65] Mother’s affidavit at [7].
[66] Mother’s affidavit at [60].
There was a significant age gap and a power imbalance between the parties when they met. The father was in a position of influence and admiration in their community and the mother viewed him, initially, as a mentor.[67] The bulk of the mother’s familial support was not in Australia and she would have been isolated and vulnerable.
[67] Mother’s affidavit at [16].
In giving evidence the mother did not present as a confident or assertive person (and this observation is not intended to be in any way critical of her). The Family Report writer notes that the mother’s accounts of coercive control are supported by contemporaneous opinions of professional who had dealings with the father around the time of separation.[68] The Family Report writer referred to a report prepared by the DFFH in early March 2024, where the authors note that the father is “known to have a tendency to engage in making false allegations against [the mother] about her parenting and use systems to control her and [the child].”[69]
[68] Family Report at [153].
[69] DFFH Report dated 6 March 2024 at 20.
The Family Report writer concluded that the risk of physical harm to the mother by the father is low, however, that there are risk markers of psychological harm to the mother and the child by way of what was reported by the mother and partly corroborated by the child in relation to high denigration of the mother by the father, the father not allowing the child to speak about the mother and pressure on the child to mask her feelings and please the father.[70] The Family Report writer reiterated the importance of the child and the mother being protected from these harms.
[70] Family Report at [154].
Following the parties’ separation in around August 2018, there was an IVO issued for the protection of the child and the mother, which the father contested and made cross applications. A final FVIO was granted in 2021 for the protection of the mother but excluded the child. This IVO lapsed, and the father’s application was also eventually dismissed.[71] The father says that the mother made another application for an IVO which was listed in late 2023, but the presiding Magistrate refused to make the interim order and the application was ultimately dismissed in mid-2024 after the mother failed to attend the hearing.[72]
[71] Mother’s affidavit at [9].
[72] Father’s affidavit at [77]-[80].
The risk posed to the mother of family violence and the child being exposed to such, is partly alleviated by the concessions made by the father of the mother having sole parental responsibility and for communication regarding the child to be between the mother and Ms B. This will limit the interactions between the parties and reduce the possibility of the mother experiencing family violence or the child being exposed to such.
The evidence that has been presented before the Court establishes that the father’s conduct does create a risk of emotional harm to the child. I accept the opinion of the Family Report writer where she says that there is low emotional safety in the relationship between the father and the child and that the child is forced to ‘mask’ her feelings to appease her father, with such a burden likely to increase in its magnitude as she ages.[73] The Family Report writer contends that it is clear that the child is aware of her parents’ negative views about each other and that the child is fearful of parental retaliation with there possibly being a normalisation of emotional violence.[74]
[73] Family Report at [147].
[74] Family Report at [148].
The Family Report writer concludes in relation to risk:
163…This assessment provides independent evidence that [the father] is intrusive in his interactions with [the child] more generally, that the relationship is stressful for [the child] to manage independently at times, and there are significant risks of emotional and psychological harm that warrant ongoing supervision of [the child’s] time with [the father], regardless of any findings of fact relating to inappropriate touch.
I accept that the conclusion expressed by the Family Report writer and find that the underlying facts which form the foundation of that conclusion have been established.
Section 60CC(2)(b)
Any views expressed by the children
The child is 8 years of age and this impacts the weight of her views as well as the possibility of the child masking her feelings and limiting her self-report which was raised by the Family Report writer.[75] Nonetheless, the child has been consistent that she wishes to spend time with both parents. This was carefully considered by the Family Report writer who stated that the child spoke of each of the parties’ homes with a sense of belonging.[76]
[75] Family Report at [119].
[76] Family Report at [118].
During cross-examination, the Family Report writer drew the Court’s attention to the child’s comments after spending time with the father during the observation:
126Following the second observation session, [the child] appeared flat and tired. The writer asked [the child] whether that was how [her parents] usually were. [The child] said it was, that [the father] was “Always rushing, never really chill. My mum is quite a lot chill.” With her arms laden with gifts, money and sweets, she said with humour, “It’s a lot to take in – and that’s only half an hour! Imagine how tired I am after seven!”
(Emphasis added)
The Family Report writer gave evidence that she found this comment by the child to be a powerful insight into the child’s views about spending time with the father.
Section 60CC(2)(c)
The developmental, psychological, emotional and cultural needs of the child
The developmental, psychological and emotional needs of the child are extensive. As was set out above, the child has various difficulties at school, and when the Family Report writer discussed this with the principal of the child’s school, Mr BB, for the purposes of her report, the principal stated that the child “was really starting to struggle in the school setting” and that “he felt this would only increase as she progressed through school unless there were significant changes in parent[al] responses to her behaviour.”[77]
[77] Family Report at [138].
The Family Report writer at [139] sets out that:
139[Mr BB] said [the child] presented as a child with significant emotional regulation issues and had extreme reactions to consequential issues. He notes she could be interpersonally manipulative and possessive of some peers, using violence on response to perceived transgressions (e.g., “I hit her because I didn’t like her talking to someone else”).
The school applied for funding to assist the child. Her behaviours include significant meltdowns, absconds from class and is physically and verbally abusive with peers and staff. It was identified that the following needed to be worked on with the child:[78]
a.support her behaviour so she can effectively access school curriculum and join in classroom activities;
b.build her emotional regulation skills;
c.build her emotional regulation activities;
d.build her social skills with her peers;
e.promote her with a differentiated learning program;
f.support her with her attention and concentration difficulties.
[78] Mother’s affidavit at [57].
The mother gives evidence that the school’s application for funding for the child was successful and the child now has someone in class to assist her at all times, but that ongoing funding is required to modify all curriculum and learning, provide intensive support, provide visual schedules, rewards charts and small group intervention.
Generally, the Family Report writer deposes to the child presenting as being under significant emotional stress with her interview suggesting that she has been overexposed to adult conflict and issues which have overwhelmed her capacity to cope.[79] The Family Report writer gives evidence of her assessment suggesting that the child is not achieving the developmental tasks of a child her age with her high level of arousal and reactivity indicative of a poorly organised stress response system.[80] The Family Report writers states that this reactivity is a “major obstacle to engaging in education and healthy peer relationships” which will “likely widen the gap between [the child] and her peers as she progresses through middle childhood.” [81]
[79] Family Report at [146].
[80] Family Report at [149].
[81] Family Report at [150].
In relation to the child’s use of violence, the Family Report writer gives evidence that the child has developed some maladaptive relational behaviours where she uses violence as a tool of coercion which is a major risk factor for future relationship difficulties. The Family Report writer states that due to her vulnerabilities, the child requires a “higher-than-average need for stability and consistency in her environment to maintain a calm arousal state than other children her age.”[82]
[82] Family Report at [151].
In this respect, the Family Report writer states that the assessment of the child suggests that she is not achieving the development tasks of a child her age.[83]
[83] Family Report at [149].
Section 60CC(2)(d)
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
As has been canvassed above, the father’s capacity to provide for the child’s developmental, psychological and emotional needs is compromised. In this regard, the Family Report writer states at [166] that:
166This assessment suggests that the parties are not equally matched in meeting [the child’s] emotional and psychological needs. Were the Court to make the orders for care as sought by the father (i.e., for an equal shared care arrangement), the writer would have significant concerns about further emotional and psychological harm to [the child] arising from her father’s behaviour. This includes the risk of modelling of interpersonal violence. The writer would also have concerns for [the child’s] loss of access to her mother, who shows the greatest capacity to understand and advocate for her needs.
At [170] of her report, the Family Report writer states that “this assessment raises significant concerns about [the father’s] capacity to understand and prioritise [the child’s] emotional needs.” It was suggested that the child’s fear of her father’s response limits her engagement with psychological services.[84] This is concerning as it is has been made clear that the child requires such professional support to address her needs.
[84] Family Report at [170].
The father’s extravagant behaviour in relation to the child, despite being well meaning, is indicative of him not understanding how to address the child’s needs. The father’s evidence before the Court indicates that he is oblivious as to how his actions impact the child, and this was highlighted by Mr BB, the school principal, who stated that the father would attend interviews with the school and reward the child in response to any minor positive comment notwithstanding the significant concerns raised by the school.[85]
[85] Family Report at [140].
The father has raised in his affidavit[86] and during cross examination, that his other children have distinguished and successful careers, implying that any needs of the child arise from the mother’s actions and not his. His eldest daughter when giving evidence was also highly supportive of his role as a father. The Court is not aware of the circumstances of the upbringing of his other children and the nature of his relationship with their mothers. In dealing with this matter, I must have regard to how he is dealing with the mother and the child who are the subject to these proceedings.
[86] Father’s affidavit at [20].
There have also been issues raised with the mother’s response to the needs of the child. This was noted in the Family Report, where Mr BB informed the Family Report writer that the child’s school has “struggled to get both parents on board with appropriate responses”[87] where the mother was described as being passive and excusing the behaviour of the child, either always believing the child or leaving parenting issues for the after-school care to manage.[88]
[87] Family Report at [140].
[88] Family Report at [141].
Mr BB also raised that both parents had pressured the school to take sides in their conflict by the father denigrating the mother to teachers and the mother utilising school events to spite the father by withholding the child’s attendance. The behaviour of the parents was to the extent that:
143…[Mr BB] indicated that his staff had required significant support to manage the alignment pressure and the vicarious trauma of same, so he could only imagine [the child’s] experience.
The behaviour of the parties has, at times, not been in the best interests of the child nor her needs. It is hoped that the conclusion of these proceedings will allow for more stability for the parties, enabling them to focus on addressing the needs and best interests of the child.
Section 60CC(2)(e)
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
It is agreed that the child benefits by having a relationship with both her parents, albeit with restrictions on the father’s time with the child. The Family Report writer noted that if the Court were to make orders for supervision between the father and the child, that this would be largely positive for the child by allowing her to experience the positive aspects of the relationship whilst protecting her from emotional harm.[89]
[89] Family Report at [168].
During cross examination the Family Report writer was informed of the shift in the father’s position in that he no longer sought for the child to live with him 5 nights per fortnight. The Family Report writer stated that she was not concerned with the quantity of time the child spent with the father, rather the focus was on what was occurring during that time. In that respect, she gave evidence that it would be beneficial for the child to spend as much time as practicable with the father if it was in an appropriate supervised setting where the child could be protected from any risk of emotional harm posed by the father. When the notion of limited time between the child and father was raised by counsel for the mother, the Family Report writer said that this was not ideal and indeed referred to the notion of the child spending four times per year with the father as a “worst case scenario”. The Family Report writer remarked that for all his difficulties, the father offered warmth, love and connection to culture and family for the child.
The Family Report writer gave strong evidence that there would be limited benefit to overly restricting the child’s time with the father and any relief for the child would be heavily outweighed by grief and loss. When the notion of monthly time was put to the Family Report writer by counsel for the mother, she said that this would lead to a “build-up” for the child which would cause anxiety as well as possibly causing avoidance in the child.
In relation to the issue of who would supervise the father’s time with the child, the Family Report writer conceded that, whilst familial supervision can be better than professional supervision, the father’s wife supervising would be akin to unsupervised time due to a significant power imbalance. She did raise the possibility of the father’s other adult children supervising time and utilising a mixture of professional supervision when required, but this was not proposed by any of the parties. It was raised with the Family Report writer whether if the father’s wife signed an undertaking and consulted with a suitable person to explain the expectation of a supervisor this would be beneficial, but she stated that there would still be stress placed upon the father’s wife.
At the conclusion of her evidence, the Family Report writer stated that there will be a time where the child can assert her own boundaries and the need for support will decrease as she matures. In this respect, she says that the child should be protected for the next couple of years.
Section 60CC(2)(f)
Anything else that is relevant to the particular circumstances of the children
There is nothing further which is relevant to the Court’s consideration.
Parental Responsibility
This is no longer a relevant consideration as the parties now agree that the mother should have sole parental responsibility subject to consultation on long term matters (other than health).
CONCLUSION
It now remains for my consideration whether the time between the father and the child be professionally supervised initially, the frequency of such time, whether this time graduates to overnight time and whether Ms B is an appropriate supervisor. It was conceded by counsel for the mother that professionally supervised time between the father and the child can occur more frequently than once a month if it is at the father’s expense, and this was largely unopposed by counsel for the ICL. The father says that he is unable to afford the costs of professional supervision. The concerns raised by counsel for the ICL and the mother, is that if time were to be supervised initially by Ms B, she would be compromised in her ability to protect the child from emotional harm, which I have now found to be established.
I accept the opinion of the Family Report writer that a significant restriction in the time that the child spends with the father will not be in the best interests of the child. Given that the mother is not pressing that the father is a risk to the child in relation to physical abuse, the issue of emotional risk can be managed by there being a period of professionally supervised time and that thereafter the father be subject to supervision by Ms B.
I also accept the evidence from the child’s teacher that her behaviour has improved since she commenced spending less time with the father.
In responding to this application, the father has spent about $200,000 in legal fees. He has funded this from personal savings. He says that he is unemployed but has also stated that he makes some money through casual tutoring work. He contributes $18 a fortnight by way of child support based on his very limited declared income. I have no clear idea of how he has savings of $200,000 or has been able to fund this litigation. He describes living in a large well‑appointed house (for the purposes of describing its suitability as a place for the child to stay overnight). I assume that the very significant expenditure on legal fees by the father will impact on his family and wife (who is employed as an educator), and an order requiring ongoing expenditure on professional supervision is likely to lead to the time between the father and the child ceasing – which is a result that all agreed would not be in the child’s best interests.
Notwithstanding the somewhat opaque evidence of his financial capacity, I do find that it is not sustainable for long term professional supervision to be ordered because of the costs of that as an ongoing expense. This is particularly the case given the recommendation by the Family Report writer that the child spend regular and not infrequent time with the father.
In seeking to deal with this matter pragmatically, and recognising the risk posed by the father’s behaviours and attitudes, whilst also considering the best interests of the child in having a relationship with the father and his family which involves regular and not infrequent time, the approach I adopt is as follows:
1)the father spend 8 sessions of professionally supervised time each alternate Saturday from 10:00am for such length of time as he is able to afford for up to 5 hours;
2)thereafter, until September 2026, the child spend each alternate Saturday from 10:00am until 5:00pm and each Thursday in the week the child is not spending time with the father from 4:30pm until 7:30pm, with such time to be supervised by Ms B; and
3)from September 2026, each alternate weekend from 10:00am on the Saturday until 12:00pm on the Sunday, with Ms B is to be in substantial attendance.
I apply this relative restrictive arrangement because:
1)I accept that the father has openly denigrated the mother in front of his family and the child;
2)the father has not supported the mother’s relationship with the child; and
3)the child has been significantly impacted in a negative way by the father’s conduct towards the mother.
I make the order for overnight time in light of the evidence of the Family Report writer regarding the child’s greater capacity to cope once she turns 10. Whilst it was suggested that Ms B is constrained in her ability to control the father’s behaviour, my impression of the wife was that whilst she was supportive of her husband, she was independently minded, articulate, measured in her evidence, aware of the issues that faced the child and had genuine warmth and love for the child. If the father continues to act in the unconstrained and overbearing way that he has in the past, the child will be old enough to express herself to Ms B, the paternal family and to the mother. If some overnight time was not ordered, the father would continue to press for it which is likely to lead to further disputes and proceedings and disruption for the child.
It is significant that the mother has not sought in the course of this hearing to establish that the father has abused the child (which approach was entirely appropriate given the state of the evidence). It may be the case that the father and his large and supportive family have banded around to support him because of the grave allegations that were raised against him which were denied. Given the concessions that have been made by both parties through the course of these proceedings, it is hoped that there might be some level of civility between the mother and Ms B so that communication can be effective and the father’s tendency to spoil the child so as to demonstrate his parenting credentials and his denigration of the mother might be restrained.
I got a strong sense that the mother wished to maintain a civil and respectful relationship with Ms B and was not wishing to appear critical of her care of the child.
Again, Ms B was supportive of the husband but she gave the impression that she had a genuine and warm relationship with the child and given that she is now aware of the reports of the child’s behaviour and her views, she is able to act as a person who will intervene to stop the father if he was to commence denigrating the mother. I did not get the same sense as the Family Report writer that Ms B or the adult daughter, Ms C, were intimidated or overborne by the father and I find that Ms B supervising the father’s time with the child is a better option than the child spending very little time with the father.
The orders that I have made do not coincide with each of the proposals put by the parties. It was plain in the course of the submissions presented by each of the parties and the ICL that the Court may determine arrangements within the range of proposals that were presented having regard to the evidence and the submissions.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 20 February 2025
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