Picton and Crowley

FAMILY COURT OF AUSTRALIA

PICTON & CROWLEY

[2017] FamCA 811

FAMILY LAW – CHILDREN – FAMILY VIOLENCE – Where there are extensive concerns raised by the father and paternal grandmother of the child’s safety in the mother’s care – Where the father and paternal grandmother have made numerous complaints to FACS, police and doctors concerning the welfare of the child – Where no allegations have been substantiated – Where there is significant and entrenched conflict between the parents – Consideration of s 60CC factors – Where the parenting capacity of both parents is a concern – Where there cannot be a shared care arrangement due to the conflict between the parents – Orders are made for the child to live with the mother and spend no time with the father – Orders made restraining the father from coming into contact with the mother or child.

Family Law Act 1975 (Cth) s 60CC(3)
APPLICANT:	Ms Picton

RESPONDENT:

Mr Crowley

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

WOC

393

2013

DATE DELIVERED:

12 October 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

11, 12, 13 and 14 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

McNamara & Associates

SOLICITOR FOR THE RESPONDENT:	Swan Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Lawrence

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

ORDERS

IT IS ORDERED

That the child X (the child) born … 2009 live with the mother.
That the mother have sole parental responsibility for the child.
That the father have no contact with the child.
That the father be restrained from approaching or contacting the child or the mother.
That the father be restrained from approaching any school attended by the child from time to time or any place at which the child is attending any activity.
That the father be permitted to cause a third party to deliver, or to post, gifts and cards to the child on his birthday and at Christmas.
That the mother do all acts required to ensure that the name of Mr Crowley be recorded on the child’s birth certificate as the child’s father and to provide a copy of the amended certificate to the father.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 393 of 2013

Ms Picton

Applicant

And

Mr Crowley

Respondent

REASONS FOR JUDGMENT

The child X (“the child”) was born in 2009 and he is eight years old.
The child has two older brothers, Mr O now aged 24 years and Mr J, now aged 20 years.
Ms Picton (“the mother”) and Mr Crowley (“the father”), on any version of their evidence, had a tumultuous relationship which commenced in 1992 and ended either in 2010 (according to the mother) or 2011 (according to the father).
Both parents allege a history of violence by one against the other. The records produced by NSW Police contain numerous references to complaints by each of them. On a brief count, there are more than 80 separate incidents in which police have been involved. Most complaints to the police were initiated by the mother.
Neither of the parents was a reliable witness. The father’s evidence of his complaints against the mother was continually exaggerated and embellished. The mother, on her own evidence, gave evidence against her own father in relation to a complaint that he had been violent towards Mr O, knowing that evidence to be false.
The father was fixated on a relentless quest to tell the Court of all of the bad things that the mother had done.
The mother was equally fixated on persuading the Court that she was the victim of family violence at the hands of the father.
Such was the volume of the complaints by each about the conduct of the other, and the volume of the denials that each had acted as alleged, that it is impossible to determine which version of events should be accepted. Counsel for both parents each conceded that there was no evidence to corroborate the allegations of either parent against the other. I therefore propose to consider the evidence of third parties in relation to events in which the child has been either involved, or affected, and which touch upon his welfare.
After the parents separated, Mr O has lived with his father and Mr J with his mother.
There was a period after separation when the parents were able to agree on the arrangements for the child’s care.
The first application in the Federal Circuit Court was filed by the mother in May 2013.
The parents have been in almost constant litigation since that time, with the exception of a period between October 2015 and June 2016 when they agree that things were relatively calm and they were able to agree on parenting arrangements for the child.
By the time the matter came for trial, the father had breached orders and withheld the child from the mother on a number of occasions. The father had further breached orders restraining him from taking the child to doctors and orders restraining him from allowing the paternal grandmother to have contact with the child. Supervised contact in a contact centre had been tried and terminated.

THE EVIDENCE

The mother relied on an affidavit sworn by her.
The father relied on affidavits by him and the paternal grandmother.
A Family Report had been prepared by the Family Consultant in June 2014.
A single expert, Dr H who is a clinical psychologist, had been appointed and had prepared a report dated 17 August 2015.
An Independent Children’s Lawyer (“ICL”) had been appointed for the child.
The deponents of all affidavits were cross-examined as was Dr H. The Family Consultant was not required for cross-examination.

HISTORY

From separation until April 2013, the parenting relationship, though strained, was such that the child spent time with each of his parents.
In April 2013, the father alleged that the child told him that he had witnessed his mother performing a sexual act with a man to whom I will refer as “K” who was a friend of his older brother.
It is difficult to glean, from the evidence, what the child actually said, when he said it or to whom he said it.
On 25 April 2013 the child was collected by the father from the mother. He was to be returned on 28 April 2013. The mother agreed to extend the time until 1 May 2013. It is the mother’s unchallenged evidence that when she went to the home of the paternal grandmother, where the father then lived, to collect the child from the father, she saw Mr O putting the child in his car. The mother asked Mr O to bring the child home. The mother went home and telephoned Mr O, asking where the child was. Mr O said “Dad called me and told me I’m not to bring him home.”
The father then retained the child.
The mother complained to the police but was told that they could do nothing. The police spoke to the father who said that his solicitor had advised him not to return the child.
The mother’s Initiating Application was filed on 9 May 2013. In that application she sought orders that the child be returned to her care, that she have sole parental responsibility for the child and that he spend time with the father on alternate weekends. To facilitate that application, the mother sought the issue of a recovery order.
On 9 May 2013, the Federal Circuit Court made a recovery order, an order that the father spend no time with the child and an order restraining the father from approaching the mother or the child. The child was returned to his mother’s care.
On 21 May 2013, the Federal Circuit Court made orders appointing an Independent Children’s Lawyer (“ICL”) and providing for the father to spend three hours with the child each Wednesday, three hours each alternate Sunday and three hours each alternate Thursday.
A Family Report, dated 12 June 2014, was prepared after interviews in May 2014. It is instructive to interpose here, the evidence of the Family Consultant, who was not required for cross-examination. I note that the Family Consultant’s evidence about the paternal grandmother is referred to later in these reasons. The report gives a “snap shot” of the situation of the family in May 2014.

THE FAMILY REPORT 12 JUNE 2014

The Family Consultant noted that both parents had stated that relations between them had improved since the court proceedings commenced. At the time of the interviews, the Family Consultant noted that the child was spending time with the father, by agreement between the parties, every Tuesday and Thursday afternoon for four hours, each alternate weekend from Friday to Sunday afternoon, and every other weekend from Friday to Saturday afternoon. The mother was proposing that the child’s alternate weekend time with the father be extended to Monday morning. The father was proposing a 50/50 arrangement. The father told the Family Consultant that he “strongly believes that the child has a preference for more time in the paternal home, and that eventually his son will end up living mainly with him.”
The Family Consultant noted:
[The father] spoke about his historical concerns regarding the child. He believes that [the child] was molested by the 10 year old daughter of a friend of [the mother’s] (who reportedly lay on [the child] and rubbed against him while both children were clothed) and that, on another occasion [the child] shared a bed with the 10 year old son of another friend. He believes that, for a period, post separation, [the mother] was immature and irresponsible, focused on her social life, throwing parties for much younger people in her home where [the child] was exposed to adults using drugs or engaging in sexual activity. He believes that, amongst other things, [the child] has witnessed his mother performing oral sex on a male partner. He spoke of his concern that [the child] will be affected by the “things he has seen” stating that both [Mr O] and [Mr J] have been upset by their mother’s actions.
[The father] reported that there are long standing concerns in relation to [the mother’s] temper and inattention to the children, stating that she rarely cooks for the family and is preoccupied with herself and her own needs. He stated that, during their relationship, [the mother] screamed and swore at him in front of the children.
The Family Consultant noted, “Despite these concerns, [the father] reported that he and [the mother] are now in daily contact with one another, saying that she frequently visits his home to collect [the child], or visit [Mr O], and often the family share a meal together.”
The father told the Family Consultant that he was keen to maintain a positive relationship with the mother for the sake of the children.
The father denied perpetrating family violence in his relationship with the mother, saying that he fended off aggression from her.
The Family Consultant reported, “[The father] denied that the child is at any risk in his care, stating that he only drinks alcohol casually and has not used marijuana for 2-3 months.”
The mother told the Family Consultant that she believed an equal time arrangement was impractical given the father’s work in Sydney and suggested that the caregiving responsibilities would fall on Mr O or the paternal grandparents. The mother spoke of ongoing tensions in her relationship with the paternal grandparents and stated that they have been abusive towards her and made false allegations against her.
When questioned about her previous concerns regarding the father’s alleged use of alcohol and marijuana, the mother told the Family Consultant that such behaviour is “normal” for the father. She accepts that he will continue to consume drugs. The mother told the Family Consultant that she believed that the father would be able to manage his intake of drugs to ensure he was able to care for the child.
The Family Consultant reported:
[The mother] denied any risk to [the child] in her care, stating the prior allegations about her partying have been fabricated and misconstrued. She asserted that [the child] has never been exposed to drug use or sexual activity whilst in her care and that the allegations about [the child] being molested have no basis whatsoever and were taken from his innocent interactions with other children. She reported that [the father] appears to believe these things despite evidence to the contrary...
The mother told the Family Consultant that the paternal family are simply attempting to discredit her.
The Family Consultant interviewed the paternal grandparents. In relation to the paternal grandmother she commented:
[The paternal grandmother] appeared anxious to outline her concerns about [the mother] and spoke quickly and earnestly, giving details of the history and various incidents. In essence, her account portrayed [the mother] as a vain and self interested person who neglects her parenting responsibilities.
…
[The paternal grandparents] share their son’s belief that [the child] loves his father more than his mother and said that he cries when it is time to return to his mother’s care.
The Family Consultant observed the child with each of the paternal and maternal family. She observed that the child separated without incident from his mother and engaged in the interview. She reported:
[The child] stated that he was unsure why he was at the assessment. He explained that he lives with his “Mummy” and older brother, [Mr J], and spends time with his father, [Mr O] and his “Nan and Pop”. He reported that his father buys him lots of presents and has spoken to him about living with him. [The child] imagines that it would be “good” to live with his father most of the time. In contrast, he described his mother’s home as “boring”, stating “I don’t really like Mum. She doesn’t buy me presents”.
The Family Consultant noted that the child appeared excited about the father coming into the observation room to play with him and, in contrast, he was unable to identify anything he enjoyed about playing with his mother. He was initially resistant to playing with her in the observation. The Family Consultant stated, “[The child] is mindful of the conflict which has existed between his parents. He is aware that they are involved in ‘Court’ and senses that they have been ‘cranky’ with one another, based on the way they look at one another.”
The Family Consultant reported:
In observation with [the mother], [the child] was independent and often protested when his mother offered to assist him, “It’s okay Mumma, I can do this!” [The mother] was encouraging of [the child], praising him for different things and attempted to enter his play, sitting near him on the floor and quietly joining him in doll house play.
The Family Consultant observed that when the father joined the observation, the child ran to him and embraced him. The child enthusiastically drew his father into play. The Family Consultant invited the paternal grandparents to join the play. She commented:
Despite [the child] being in the room, the adults raised some concerns, reflecting that “[the mother’s] too busy” to play with [the child] or that [the child] is often “hyper” because “[the mother] gives him takeaway”. [The paternal grandmother] lifted up [the child’s] shirt to demonstrate itchy marks on his body and her concerns regarding lack of care and was reminded not to discuss such matters in [the child’s] presence.
In relation to the father’s proposal for equal time, the Family Consultant stated:
While there are some factors which may support an equal time plan, such as the parents living in close proximity, both parents’ historical involvement, the presence of elder siblings in each home, and the parents’ current flexible and amicable approach, other factors suggest caution. It is clear that there are longstanding tensions within the family, extending to include the paternal grandparents and the parents have differing approaches which may make such a plan confusing for the child and be unsettling for him.
In relation to the father’s attitude, the Family Consultant reported:
[The father] appears devoted to [the child], however some of his prior concerns about [the child’s] care appear disproportionate. There was a sense that [the father’s] historical mistrust of [the mother] means that everything is viewed through a lens of suspicion and many of his complaints regarding [the mother] had a sexual dimension. Without further independent information, given the competing accounts of the parents, it is difficult to form a clear view of what risk [the child] may be in in the maternal home. At any rate, [the father] is now reassured that [the mother’s] lifestyle is more settled.
There is a sense that the parents are now distancing themselves from concerns previously made. [The father] is supportive of [the child] spending significant time with his mother, despite raising concerns with [the mother’s] mood, inattention to [the child] and alleged poor moral influence. It seems that allegations in relation to [the father’s] substance misuse are also unresolved and that the parents both accept a level of risk in each home.

HISTORY CONTINUED

On 22 October 2014, a letter was written by FACS to the mother advising that the case in relation to Mr J and the child had been closed and stating “This decision has been made because Community Services has assessed there are no risks of harm concerns for your children at this time.”
On about 27 November 2014, the mother moved into a home shared with her then boyfriend, Mr A. Mr A has a daughter, M, who is about the same age as the child. M spent time with her father but lived with her mother.
In November 2014, the child spent holiday time with the father and was returned to the mother on 30 November 2014.
On 1 December 2014, the mother and Mr A had an argument. The father referred to this event repeatedly in cross-examination and in his affidavit, as “the 23 hour domestic violence event.” The mother deposed that the argument was heated but there was no act of violence. The father persuaded the mother to let him take the child. The mother deposed that she agreed the child could stay with the father for a few days.
The circumstances of that event will be discussed later in these reasons.
The mother and Mr A subsequently separated and Mr A moved out of the home.
The child remained in the care of the father until 12 March 2015 when the Federal Circuit Court ordered that he be returned to the mother.
The mother deposed that the father did not allow her to speak to the child or spend time with him for that period of three and a half months.
At the commencement of the school year in 2015, the father, unilaterally, and without notice to the mother, enrolled the child at N Town Public School.
On 2 February 2015, orders were made by consent which provided that the child live with the father and spend time with the mother every Wednesday and Thursday afternoon, every Sunday and each alternate Saturday. The matter was adjourned to 12 March 2015 for an interim hearing.
On 12 March 2015, the Federal Circuit Court ordered by consent that the child be returned to the mother and thereafter live with her, spending time with the father on alternate weekends from after school Friday until Monday morning; overnight on Wednesdays and for half of the school holidays. The orders provided for urinalysis testing and contained a further provision restraining the parents from taking the child to counselling other than with a counsellor nominated by the ICL. The paternal grandmother gave an undertaking not to make derogatory comments about the mother or members of her household within the hearing of the child and not to discuss allegations of abuse with the child. The orders provided that the child was to remain at N Town Public School.

The records of N Town Public School were in evidence.
On 18 March 2015 the records produced by N Town Public School note that the father, in a phone call, was frustrated that no one was helping with his repeated allegations. The school counsellor tried to tell the father that her role was to make sure that the child was happy and coping at school. She said that he seemed happy in class. She noted:
Then [the father] started swearing about [the mother] - ‘Fucking bitch’ or something like that … he was so elevated. I told him to stop there, I did not have to listen to his language, if he did not stop I would hang up.
The child’s report from N Town Public School for Semester 2 of 2015 recorded:
[The child] is a happy and energetic student … He is learning to listen more attentively during small group and whole class instruction and to manage distractions that affect his concentration. [The child] can behave impulsively on occasion and is practising ‘taking a breath and breathing slowly’ before proceeding with his tasks.
On 5 August 2015, orders were made for the appointment of a single expert, Dr H, to prepare a report.
On 20 August 2015, the father alleged that the mother had caused an injury to the child’s neck. (Those allegations will be examined in detail later in these reasons together with the father’s actions in taking the child to medical practitioners in contravention of orders made on 7 October 2015).
The father took the child to the police station and told the mother that he would not be returning the child to her care. The father did not take the child to school for fear that the mother would remove him. The child was withheld from school for eight consecutive days.
On 26 August 2015, the matter was transferred to the Family Court of Australia.
On 3 September 2015, the school principal completed a document entitled “Guidelines for supporting student attendance” and noted:
[The child] has been absent for 9 consecutive days with the probability of not returning until after 14/9/15 when parents go to court. Mother has family law court orders that [the child] lives with her. Father sees him alternate weekends & Wednesday night to Thursday morning each week. Father did not return [the child] to the mother after night visit on 28/8/15. He is alleging mother tried to choke [the child]. Last week [the child] was supposedly away with asthma – no Dr certificate or pre-recorded cases of asthma. Father has refused to bring [the child] this week for fear mother will come to the school to take him. Father says he has an AVO order on the mother but this is not the case as confirmed by [P Town] Police. I have spoken to the mother and father every day this week. Father agreed to bring him to school today, 3/9/15, but he didn’t come – Father said he became sick last night. I phoned the child’s Medical Centre and the Dr confirmed he had seen [the child] – he had a slight cold. Upon grandmother’s insistance (sic) doctor post dated a Medical certificate from Monday 31/8 until the end of the week, Friday 4/9. I have tried calling the father again this afternoon but he is not answering his phone. Legal branch and Child Welfare Unit have been consulted and informed.
The mother instructed her solicitors to file an application for a recovery order. That application was listed for hearing on 14 September 2015. On 9 September 2015, the father voluntarily returned the child to the mother.
The following day, the father filed an Application in a Case seeking orders that the child live with him and have supervised time with the mother.
The father’s Application in a Case was listed on 7 October 2015. On that day, when the father was represented by his solicitor, orders were made by consent, relevantly, to the following effect:
3.      That the Mother shall have the sole parental responsibility for making decisions about the health and education of the child, [X] born … 2009 on the basis that in the event that a significant health decision is required to be made then the Mother shall discuss with the Father such medical treatment and the parents shall otherwise accept the advice of the treating medical practitioner.
4.    That the Father be restrained from:
4.1bringing the child into contact with the paternal grandmother, [Ms Q Crowley], unless otherwise agreed in writing by the Mother.
4.2Attending at the Mother’s residence unless the Mother expressly invites him to do so.
4.3Taking [the child] to any health professional, hospital, or treating medical practitioner without the express written consent of the Mother beforehand except in circumstances requiring any immediate emergency treatment in circumstances where the Mother has not been able to be contacted and not responded within five minutes.
5.    In the event that the Father fails, refuses or neglects to comply with Order 4 herein and/or Order 2 of the Orders made on 12 March 2015 then Order 2.c.i of such Orders shall be suspended and the following Orders shall take effect.
6.    That [the child] shall spend supervised time with the Father as follows:
6.1Each alternate Saturday from 10.00 am until 12 noon supervised by [V Centre], supervised contact service in [D Town] at a date that can be arranged following the parents completing all the necessary paperwork with [V Centre] within 7 days from the date of these Orders and the costs of supervision being met by the Father.
6.2That once a supervised time position is available for the parents at [R Group], … then [R Group] is to undertake the supervision for a period of 2 hours as offered by [R Group].
The parents agree that from October 2015 until about June 2016, the parenting relationship was workable and they were able to make arrangements between them for the child. They agreed to a shared arrangement. They disagree about how much time the child spent with each of them but I am prepared to assume the time was approximately equal.
On 17 November 2015, the father wrote a letter to the principal of N Town Public School expressing concern because the child had reported that a girl in his class “sits with her legs wide apart and she pulls her pants to one side and shows me and [a class mate] her doodle”. The father said that he had raised this with the mother and she said the child had told her the same thing. The principal replied:
The incident of looking up the pants and at private parts of the body appears to have happened only on 1 occasion – last term. Of course this is unacceptable behaviour at school, however, it is not uncommon for children of this age group to be inquisitive. We have spoken to the children about why this is inappropriate and that matters like this should be reported immediately to the teacher.
The principal also expressed some concern that, when she spoke to the child, she became aware that the child had heard the word “stripper” and he told the principal that he had seen it on an Xbox game. The principal said she assumed the game belonged to one of the child’s older brothers.
On 22 February 2016, the teacher at N Town noted that she spoke with the child’s mother. The teacher noted that the child’s eyes had been checked again, and “he is to wear his glasses for close work, especially the reading block. Hoping this will prevent the headaches that he gets”.
On 25 February 2016, the school notes that a teacher spoke with the child’s father. It was noted that the father “does not want the child wearing the glasses. He said the optometrist said the child did not need to wear the glasses.” When the teacher responded that it was up to the parents to sort that out, the father said he would get a letter from the optometrist.
On 26 February 2016, a teacher at N Town Public School recorded, “I spoke with the child’s mum regarding the glasses. She reiterated that the child needs to wear the glasses.” The mother also expressed concern that the father had come in at least once that week when it was her day with the child to visit the child in the morning before school. It was recorded that another teacher had seen the father at the school one morning after the mother had dropped the child off.
Included in the records kept by the school is a letter from an optometrist. The date is not obvious. The letter states “I saw the child today for an eye examination. He had specs which he lost and was having to sit close to the TV and was experiencing headaches.” The optometrist prescribed spectacles for the child for constant wear.
On 11 March 2016, the father had a conversation with a teacher at N Town Public School and said that the mother had a partner “who beats her with a baseball bat when he is angry”.
In June 2016 the mother signed two notes giving permission for the paternal grandmother to pick up the child from school. She was unable to drive and the father had a broken arm. It was the mother’s unchallenged evidence that during this period, the child began to settle at school and his performance improved.
The father ceased work.
The shared care arrangement came to an end when the father applied for Centrelink benefits, stating that he had time caring for the child, and Centrelink reviewed the mother’s entitlements.
The father alleges that on 13 July 2016, there was an incident of sexual activity between the child and M which occurred when the mother stayed overnight at the home of Mr A. The matter was reported to the police. Those events will be examined later in these reasons.
The child’s semester one 2016 report from N Town Public School was in evidence. The report noted that the child was working with a learning support teacher in reading. The child was noted to be:
a student for whom learning can be quite challenging, [the child] finds it difficult to persevere and challenge himself with written assignments, becoming distracted and engaging in off-task behaviour … He needs teacher prompting to follow instructions during transition times.
On 8 August 2016, the child arrived late to school with his father. The teacher asked the child if he was okay and the child blurted out “Dad only has 3 days and Mum has 11 days because Mum lied in court.” The teacher noted:
He then proceeded to tell me that ‘It was okay because Dad was coming to school this afternoon before pick up and was going to give him a mobile phone. Dad would put it in his bag and then [the child] could ring Dad but he had to hide it somewhere.’ [The child] seemed upset about this.
The teacher notified the mother that the child had said he was getting a mobile phone from his father.
On 11 August 2016, the father telephoned N Town Public School. He told the school that he had been to the police to take out an AVO against the mother and that he needed the child to have a mobile phone so that the child could call if there was an argument between the mother and Mr A. He also said that he had been to FACS and spoken with the local Member of Parliament. He had been told he had a right to talk to the child on the telephone. The father told the school that the mother was “bipolar”. The teacher recorded that the father was speaking very quickly and she had difficulty answering.
On 23 August 2016, a teacher at N Town Public School recorded that she had answered the school phone after hours and spoken to the father. She noted:
[The father] said that I had stopped [the child] making a disclosure late last week. I said I would check the calendar as I could not remember any incident and also had been out of school for some time the week before. After checking, I told [the father] I had spoken to [the child] in passing on Friday morning – asking [the child] if he was going home with Dad in the afternoon and reminding the child that if Dad was late to come to me at the tree and then wait on the verandah (sic). [The child] then in a rush started to say “Dad only has three days and Mum has…”. I said to stop, we wouldn’t talk about this at the moment…
The father then said to the teacher that the child had said “Daddy I told [the teacher] … about [Mr A]”. The teacher told the father that she had not had a conversation with the child about anything to do with Mr A.
The father filed a further Application in a Case on 24 August 2016 seeking an order that the child live with him. That application came before the court on 19 September 2016 and was adjourned to the first day of the trial which had been listed before me on 28 November 2016.
On 30 October 2016, the records kept by N Town Public School note that the father had attended at the school early that morning and approached a child asking the child if the child had been at school yesterday. The father also spoke to that child’s mother.
On 11 November 2016, the child was seen by a General practitioner with his mother asking for a Mental Health Care Plan to see a psychologist in relation to the child’s behavioural issues.
On 28 November 2016, the father indicated that he wished to proceed with an application to dismiss the ICL. The father was told that this would delay the final hearing but he pressed his application which was then listed on 22 February 2017.
On 12 December 2016, the father and the paternal grandmother took the child to see Dr S, a neurologist. This constituted a dual breach of the orders of 7 October 2015 as the father was restrained from both bringing the child into contact with the paternal grandmother and taking him to medical practitioners. Thereafter, the father withheld the child from the mother.
On 15 December 2016, the mother brought another application for a recovery order. The court noted the undertaking of the father to return the child to the mother at McDonalds at Suburb T by 9.00 pm that evening. The father was restrained from discussing the alleged neck injury with the child and from denigrating the mother. The court specifically refrained from implementing the orders for supervised contact.
The events on 15 December 2016 will be discussed later in these reasons.
On 16 December 2016 the mother filed an Application in a Case for which she was granted leave to serve short notice. The application was listed on 21 December 2016 when the orders for supervised contact, which had been foreshadowed in the orders of 7 October 2015, were put into effect.
The mother moved to U Town in early 2017 and the child changed schools.
The child’s semester one 2017 report from U Town Public School was also in evidence. Although the child was graded either basic or sound in relation to each aspect of the report, the teachers noted an improvement. In relation to English, the teacher commented “He has demonstrated pleasing improvement when reading texts. When writing, he is able to produce a simple text with one on one assistance.” In relation to mathematics, the child was noted also to have made pleasing progress.
There are a number of reports of bad behaviour on the child’s part contained in the records of U Town Public School, including an incident on 20 March 2017, when the child put his hand over another child’s mouth, kicked him and punched him. On the same day, the child punched a little girl and held her down with his hand over her mouth. The child received a “yellow slip” in relation to those incidents. The mother was informed.
On 6 February 2017 the father sent a redacted copy of Dr H’s report to FACS. The redaction included only paragraph 86 of the report and none of the material critical of the father and paternal grandmother.
On 7 February 2017, the General practitioner referred the child to Y Group and also created a GP Mental Health Treatment Plan for the child.
On 22 February 2017 the father’s application to dismiss the ICL was heard. Reasons were delivered and the application dismissed on 24 February 2017. Directions were made for all parties to file affidavits by 4.00 pm on 15 March 2017, noting that each witness, including the parties, would be permitted to rely on one affidavit only. The matter was listed for call-over on 10 April 2017. Each party had filed affidavits and the matter was listed for hearing commencing 11 September 2017.
On 4 March 2017, the father commenced spending supervised time with the child at V Centre, a supervised contact centre. Further reference to the records of those visits will be made later in these reasons.
The child commenced counselling with a psychologist Ms W at Y Group. The notes of Ms W were subpoenaed. Ms W produced an electronic version of her notes. It is an agreed fact that Ms W’ handwritten notes had been lost and that the electronic version was reconstructed by her.
On 6 March 2017, the child had his first session with Ms W. Under the heading “Observations” she noted:
Unsettled, unwilling to engage, remained close to mother.
Presenting issues – behavioural and emotional dysregulation – aggression (home and school), anger, crying jags, hyperactivity. Family history – parents separated. Older brothers (20 y.o. [Mr J] lives with mum and the child). Father has supervised 2-hr visit every second weekend. Has recently moved from the [N Town] area, changed schools. Family history of ASDs (both older brothers).
Ms W noted that the mother reported to her that there had been a history of domestic violence by the father against her, which history, Ms W noted, was not substantiated. The mother reported that the father had made multiple allegations of physical/sexual abuse of the child by the mother or others in her home (which Ms W noted were also not substantiated). The mother reported that the child returns from visits with the father very dysregulated and takes days to settle. The mother further reported that the child had been in a fight at school and was put on a temporary behaviour plan. Ms W noted her plan for the child was “attachment-based parenting strategies, co-regulation, self-regulation.”
On 10 March 2017, the mother sought referral of the child to the school counsellor. She stated “I feel [the child] needs help with his learning to catch up with his peers.” In answer to the question “What do you hope will happen as a result of the school counsellor seeing your child?” the mother wrote, “[The child] will get learning support within school. His learning style will be identified.”
On 13 March 2017, Ms W reported to the child’s general practitioner:
You referred [the child] for assistance with behavioural issues. [The child] presented as well-tended and was moderately easy to engage in conversation. As his mother was providing their family history and current court-regulated obligations, [the child] busied himself playing with toys in the therapeutic space. He showed appropriate reactivity to the conversation, however his affect is somewhat angry and his behaviour unfriendly. His mother reported that his behaviour at school and at friends’ homes is good.
Therapy will initially focus on understanding [the child’s] behaviour, giving him the opportunity to discuss his thoughts and emotions around his family situation, trauma history and relationships with parents. Concurrently, we will be working on better coping strategies around emotional regulation.
On 14 March 2017, the father wrote a letter to U Town School stating “My son [X] has five injured discs in his neck/cervical spine, can you please ensure [the child] does not play any contact sport or any activity that could further injure his neck.”
After the next session of counselling on 24 March 2017, Ms W noted that her rapport with the child was building. She observed that the child was an active child who was not especially easy to engage in conversation. He had moderately good physical co-ordination and was moderately interested in the other children, clinicians and activities in the space. Ms W noted that the child preferred his mother’s presence and engagement and consistently and constantly required his mother’s attention, interrupting, intruding, calling out and pulling on her arm.
After the session on 30 March 2017, Ms W noted that the child had good verbal skills although generally about preferred topics and did not like talking about his father. She noted that the child would talk about more sensitive subjects (fights, visits with dad) while playing handball. She noted that the child much prefers one on one attention and did not easily accept conversation between herself and the mother. Ms W noted that whilst the child preferred his mother’s presence he did not require her engagement. Ms W discussed with the child his fights at school. She reported that the child is conscious of negative consequences of aggression at school, that he was considerably affected by the behaviour book and was determined not to do anything to warrant another book. She reported that the child is able, with some effort, to cope with classroom and playground demands without getting angry or lashing out. The mother reported that the child cannot read easily and gets frustrated in the class and with homework.

After the counselling session on 11 April 2017, Ms W reported that the child was frustrated because he could not read easily. In addition, she noted that the child would much rather play handball than do “work”. She noted in the child the physical signs of anger, “fists, aggressive posture, reddened face”. She noted that the child was able to control anger/frustration by deep breathing and a few minutes of quiet. In a discussion with the child about different emotions and intensities, the child was able to comprehend although he could not contribute much by way of suggesting things that could assist with self-regulation. Ms W conducted a joint session with the mother regarding regulation (both of herself and of the child) and discussed a referral to a paediatrician for assessment, noting that the child had some diagnostic markers of Attention Deficit Hyperactivity Disorder (“ADHD”) and/or Autism Spectrum Disorder.
On 24 April 2017, Ms W noted that the child’s behaviour was becoming more regulated at school, that he had made several good friends and was playing well without aggression. The mother reported to Ms W that the child is functioning well in the classroom but needs assistance with reading. The mother reported that at home, the child’s behaviour had improved and there was a reduced frequency, intensity and duration of meltdowns and tantrums. The mother also reported that the child had reduced contact with his father. Ms W noted that there was a reduced need for the mother’s engagement in the session with the child and that he was able to stay within the conversation without interrupting or intruding. Ms W noted that she had addressed attachment-based strategies, co-regulation, modelling, recognition and validation of feelings and social rewards for positive reinforcement of preferred behaviours during the session.
In May 2017, the child was assessed by Dr Z, a paediatrician, who has diagnosed the child as suffering from ADHD and Level 1 Autism.
On 11 May 2017, Ms W noted that the child was patently calmer, quieter, and able to settle easily. Ms W raised the issue of the child’s feelings against his father and noted:
[The child] uncomfortable talking about his father, changed the topic quickly. Able to talk about other feelings. [The child] reports that he has a lot of friends at school, enjoys playing with them, rarely gets into trouble but finds schoolwork difficult. He feels he is getting along with mum much better, as mum doesn’t get angry with him often.
The child’s next two sessions with Ms W had to be cancelled because the child was unwell.
The child’s teacher, Ms AA, prepared a questionnaire for Dr Z dated 12 May 2017. She noted:
In my capacity as classroom teacher I have observed the following:
·[The child] is significantly below academic levels in literacy. He is enthusiastic and engaged when part of a small group or one on one instruction. During whole class learning he loses focus and distracts others when not working side by side with his teacher or an aide.
·He struggles to comprehend multi-step instructions – these need to be given step by step.
·He needs assistance with organisational skills.
The teacher noted that the child sometimes confuses imagination and reality in his play. In answer to the question “Does this child have any difficulties with group work or co-operative play?” The teacher answered:
Sometimes, the line between play and reality gets blurred. On these occasions, [the child] has harmed other children. During an imaginary game, [the child] has been overly invested and restrained children on 3 occasions. This has involved choking children around the neck and holding them to [the] ground.
The teacher further noted that “[The child] prefers routine and can become distracted and agitated if unsure of what is happening”.
On 18 May 2017 Ms W wrote to Dr Z. She noted that she had seen the child on six occasions since the referral. Ms W reported:
[The child] presented as well-tended and moderately easy to engage in conversation. It took until the 3^rd session before he was comfortable without his mother present. He is an intelligent child, and is aware of and has learnt from negative consequences of his behaviour at school. [The child] displays moderately good affect, and can be appropriately reactive to conversations and situations. He has good eye contact, and his gaze is somewhat appropriate and lively.
He has good language skills and can participate in conversations, especially when asked questions about his experiences. However, he consistently avoids talking about his father, and about his own behaviours. He does not easily converse about subjects that are not of his choosing, and quickly reverts to his own topics of interest ….
He displays some interest in other people, especially other children in the therapeutic space. He can play with others, however he prefers to set the rules of play. He finds it difficult to see the perspective of other people, and shows no interest or insight in what others may be thinking or feeling …
[The child] is insistent on following his own agenda. He is not amenable to boundaries and rules set by others. He finds it difficult to respond appropriately to spontaneity, and remains frozen until the situation returns to normal. He is focused on his own activities, it can be difficult to redirect him, and he is easily angered. I observed that he was able to control himself with me – his fists clenched and his face reddened, but he did not lash out when thwarted in his wish to play during our session.
[The child] shows limited insight into his emotions and behaviours, other than negative consequences. He is not comfortable that his mother “dobs him in” by informing me of his tantrums and aggressive behaviour. He has not been able to understand what our sessions are about and why he is attending.
He is a very active child, and enjoys playing energetically. He is easily distracted, and moves often from activity to activity. He does not like being left alone, and frequently interrupts/demands attention when his mother and I are conversing.
He can also be very guarded about his father, and refuses to talk about him and their supervised contact. From my discussions with his mother today, contact with his father has ceased for the last 4 weeks. [The child] has not mentioned him or asked after him in this time. His mother reported that his behaviour has improved recently.
[The child] displays some behaviours/affect that are consistent with ASD and ADHD diagnoses. However, there is a family history of domestic violence, and [the child] also displays classic trauma-related freeze reactions when unsettled, hyperreactivity and defensiveness.
On 25 May 2017, Ms W wrote to the General practitioner reporting:
You referred [the child] for assistance with behavioural issues. He has had some behavioural difficulties at school, and can be aggressive when he is angry. He displays some symptoms consistent with ADHD, and with ASD, and his mother will be seeing [Dr Z] for an assessment.
Approach and response to therapy
Therapy has focused on [the child] learning to recognise his feelings, and regulate his anger responses. Concurrently, I have been working with his mother on implementing parenting strategies and reinforcing positive behaviours.
From his mother’s reports, [the child] has shown some improvement in regulation. This may be partly due to less contact with his father. I will be working with [the child] on his feelings around the recent absence of his father from his life.
[The child] has been cooperative in sessions. His intrusive behaviours have reduced considerably, he is better able to wait his turn and follow direction.
Ms W concluded that the child would benefit from further sessions of counselling.
Tendered in the proceedings was a record produced by NSW Police, indicating that the investigation of the alleged assault by the mother upon the child had been ended on 5 June 2017.
On 13 July 2017, Ms W noted:
[The child’s] demeanour much changed – bright affect, well-regulated, calm, normal volume of voice, easy to redirect when necessary. Easy to engage (conversation and play). However, did not want to discuss father, ‘I’m sad I don’t see him more’.
The mother reported that the child’s behaviour/affect had considerably improved and gave examples of the child being able to self-regulate and self‑soothe. The mother said that the child’s aggression, meltdowns and tantrums had reduced and he was much easier to reason with.
Dr Z reviewed the child on 15 August 2017. In a letter to the child’s General practitioner he stated “[The child] returned for review with his mother … We reviewed the Social Responsiveness Scales and Vanderbilt Scales. I am not convinced that he has an ASD however I am sure that he has ADHD.” Dr Z and the mother discussed the mother’s concerns about the child taking Ritalin, because the mother had had an unpleasant experience with that drug. Dr Z asked for further tests and, when the result of that testing was available, would discuss again with the mother the prospect of starting the child on Ritalin. Dr Z suggested some further investigation into the child’s physical health that related primarily to his heart.
On 17 August 2017, Ms W discussed the report which had been received from Dr Z with the mother. The mother told Ms W that she would be prepared to consider the use of stimulants for the child in 2018 when he is in year three at school and his classwork is more challenging. The mother reported that the child’s behaviour at home was at an acceptable level.
Ms W reported “[The child] [was] somewhat able to regulate himself during these discussions. Explored changes in therapeutic space, excited to be back. Good affect, joked about ‘Spongebob Squarepants’ and acted out scenes as Spongebob.” She reported that he was “somewhat bouncy” but easy to redirect away from games to talk. She discussed ADHD with the child who now understands that it does not make him “stupid”. The child reported that he was not having problems at school, that his reading had somewhat improved and that he was more confident about himself.
On 24 August 2017, Ms W wrote a further letter in which she stated that she had seen the child for eight sessions and that the mother had been present at each session. Ms W stated:
Due to his age and stage of development, it is not expected that [the child] be able to easily regulate himself. The therapeutic work included devising regulation strategies and working with his mother to implement and reinforce these strategies at home.
[The mother] has been wholly participatory in the process. She has learnt to help [the child] calm himself, firstly by being mindful of his emotional state and then helping him work through calming/soothing strategies, while staying calm herself. Therapy has also included behavioural modification strategies, including shared goals, rewards/positive reinforcement systems and social rewards for positive behavioural changes.
From [the mother’s] reports, the frequency, intensity and duration of his behavioural and emotional meltdowns have reduced considerably since therapy commenced.
As mentioned earlier, [the child] cannot be presumed to have the capacity to regulate his emotions and behaviours himself. [The mother] has been instrumental in learning new strategies to help the child, and has had considerable success in implementing them.

THE ALLEGATION OF MAY 2013

The paternal grandmother said that she had made a report to the Department of Family & Community Services (“FACS”) on 26 April 2013. There is no record of any such report.
The father, in his trial affidavit, deposed, “… around 24 April 2013 … [the child], then aged 4 made reports of what seemed to be oral sex that took place between the [mother] and (sic) eighteen year old boy, with [the child] present.”
The father deposed that he was living with the paternal grandmother at the time. He deposed that his mother phoned FACS for advice and was told they should retain the child. The child was returned to the mother after a recovery order was made on 9 May 2013.
The difficulty with the father’s version of those events is that the first mention of the allegation in the file of FACS occurred after the recovery order had been made and the child had been returned to the mother.
The mother contacted police on 1 May 2013 to report that the child had not been returned to her care. The police attended the father’s residence and the father informed them that “he has spoken to his solicitor and was told not to give the child back and he is in the process of obtaining custody of the child.” The police conducted a welfare check and noted they did not have any concerns for the welfare of the child. The mother contacted police again on 2 May 2013. The record notes that “[The mother] did not wish for Police to conduct a further welfare check on the child as she had no concerns for his welfare, she just wanted the child returned to her and was advised to go through the proper legal channels.”
On 3 May 2013, there is a record of the paternal grandmother having called FACS. The note states “Wanted to advise CS that she at the moment is taking care of [the child] as per advice from her solicitor and the police.” She left a phone number for FACS to call her if they wanted to speak about the child’s location.
I am unable to find, in the records produced, any record of the paternal grandmother being advised to retain the child.
The first report of sexualised behaviour in the mother’s home appears to have come from the paternal grandmother to FACS on 10 May 2013. The call was recorded. There is a typescript of a lengthy conversation which notes:
[The paternal grandmother] advised that [the child’s] mother has drug fuelled parties and she has notified the police about these as well. [The paternal grandmother] is concerned that she does not feel the police have done anything about this either. [The paternal grandmother] said that the mother’s “gutter slut girlfriends” who are also about 40 (the same age as [the mother]) have come and had sex with [the paternal grandmother’s] 18 year old grandson and his friends. She said that one of them in particular also sucked him off in the garage. [The paternal grandmother] said the woman also had slutty breast enlargements and was getting all the young boys to feel them including boy (sic) who were underage. [The paternal grandmother] said she told her older grandson to say to the woman that he should call her a slut and to stay away from her … [The paternal grandmother] said that the gutter slut girlfriend who had slept with her grandson at least was no longer attending the home but that was only because her … ex-husband had started threatening her and [the mother] that he would kill them. [The paternal grandmother] said that she would be happy if he killed that tramp but that she was concerned about [the child] being harmed … [The paternal grandmother] said that in the last 2 weeks things have gotten even worse. When she has had [the child] he has tried to touch [her] boobies and when I tell him he is not allowed to do that he asks why. [The paternal grandmother] said that the child has also said that he saw Mummy sucking [K] off. [The paternal grandmother] said that two weeks ago she had the child and refused to return him and that they have gone to see a solicitor to go to court ... [The paternal grandmother] said that she was concerned that Mum may realise that she is not going keep [the child] and have a paranoid attach (sic) and kill herself, not that she would care except if she also harmed [the child] or alternatively if [Mr J] is the one who finds her.
The paternal grandmother then made a series of complaints against the maternal grandfather, stating:
… that she wanted to go down and call him on all of his accusations and hit him with a baseball bat but she knew that this was not a good idea and she would then be the one in trouble. [She] also said she thought about going down and telling everyone in front of him at his work that what he signed was absolute lies.
The typescript of the recorded telephone call runs for almost three pages.
The child was interviewed by JIRT on 23 October 2013. There is no transcript of the JIRT interview in evidence but a summary is provided from the COPS records which states:
On the 23^rd of October 2013 the child [X] was interviewed by [D Town] JIRT. During this interview [the child] was shown a body chart where he was very competent and identified all body parts asked of him. When questioned about his penis (doodle), he said that no one touches him there. [The child] was questioned about the mouth on the body chart, [the child] said, “you stick a dick in your mouth.”
[The child] was questioned further about this, however denied saying it and said, “You stick food in your mouth.”
[The child] later said, “You eat dick.”
[The child] stated that no one has stuck their “dick” in his mouth and denied ever sticking his “dick” in anyone’s mouth.
[The child] did not make any clear disclosures. This matter is to be suspended.
The notes of the JIRT interview contained in the FACS records state “There were no disclosures made by [the child] during the interview that could corroborate the report received.”
The child’s disclosures to JIRT suggest that he has been exposed to adult sexual behaviour. Dr H’s evidence in relation to the child’s disclosure, canvassed later in these reasons, is that at this time, it would be difficult to establish how and when such exposure occurred. It is not possible to make a positive finding that the mother exposed the child to these behaviours either by performing sexual acts in his presence, or by allowing him to witness the sexual acts of others in her home.
I do not accept the evidence of the father that his belief that the child witnessed the mother performing oral sex is what compelled him to withhold the child in May 2013. There are no recorded complaints to FACS prior to the recovery order being made of the child making a disclosure of that nature. There is nothing in the FACS file to suggest the father was given advice by FACS to withhold the child. When the police contacted the father after receiving a complaint from the mother, he said he was withholding the child on advice from his solicitor. Similarly, the paternal grandmother told FACS that the advice to withhold the child had come from her solicitors.

THE 23 HOUR DOMESTIC VIOLENCE EVENT

On 1 December 2014, the father contacted FACS. He reported that he drove past the mother’s home at 5.15pm on 1 December 2014 and was concerned that the mother was moving house and that there was no furniture in the house. The caller said that he pulled up in the driveway and the child came outside the house and was crying. The child told him that the mother and Mr A had been “arguing and yelling again”.
A further report was made to FACS on 1 December 2014, presumably by the paternal grandmother, who repeats the information given by the father and adds further detail including that “[The child] disclosed to the caller that [Mr A] had punched the new house, that [Mr A] was punching everything and that [Mr A] was really cranky. [The child] said he had been scared.”
I note that there was no complaint made by the mother to the police on 1 December 2014. Given the mother’s history of numerous and multiple complaints it is unlikely that, had there been any incident of violence at her home on that day, she would not have telephoned the police.
I do not accept that there was a violent incident as the father alleged, although there may have been a disagreement between the mother and Mr A.

ALLEGED NECK INJURY – 20 AUGUST 2015

In his affidavit sworn 15 March 2017, the father deposed:
On 20 August 2015 [the mother] became very frustrated with [the child] and grabbed him and physically assaulted him and injured [the child’s] neck, and [the child] received damage to five of his spinal discs including his neck and cervical spine. JIRT and the State Crime Command Team are investigating that matter in relation to laying police charges against the mother.
I collected [the child] on Friday 21 August 2015 which was my weekend with [the child]. [The child] first told me that his neck was sore that night but he did not tell me why, although on 22 August 2015, he did tell me that [the mother] had injured his neck. I then phoned the Police.
On Sunday 23 August 2015 [the mother] collected [the child] from my home and as she was standing in my driveway [the child] said to her, “My neck is still sore, you hurt it” and he was pointing at [the mother]. [The mother] replied, “You little fucking liar. Get in the car.”

In cross-examination, the father said that the child complained in words to the effect “Mum hurt my neck”.
The child attends a General practitioner at the Medical Centre in Suburb BB. The child’s medical records between 25 January 2007 and 17 February 2017 were produced on subpoena and tendered. Between 20 August 2015 and 25 January 2017, the notes record the following.
On 26 August 2015 the father took the child to see a general practitioner. The notes record:
father brought him in
says his mum held him by his neck
[The child] mentioned to him oln (sic) friday that this has happened and he said he had a sore neck
has been like it for a few days now
then he went in his mother’s custody
he held her by her neck and said to his father that this is what she did to him
[The child] called his mum a liar too
dad wanted it recorded on file
The General practitioner noted under the heading “Reason for Contact” the words “family dysfunction”.
It is not clear how the account given to the general practitioner, and the account given by the father in his affidavit, became an allegation that the mother “strangled” the child as the father repeatedly, and at every opportunity, alleged in cross-examination.
On 26 August 2015, there was a report to FACS. The reporter was noted to be very concerned about the child because he had been running onto the road. It was reported:
About one month ago, [the child] saw reporter’s car and he ran out across the road to greet reporter and he nearly got hit by a car. Since then, there had been 4 other occasions that [the child] had gone on to the road. [The child] rides his bike in the driveway and he rolls out on to the road. Reporter states [the child] rolls out on to the road because [the mother] does not lock the gate. Reporter has asked [the mother] to lock the gate but she refuses to listen.
From the content of that report, I infer that the reporter was the father. It is notable that the father does not report any incident of the mother grabbing the child by the chin and swinging his neck around.
On 27 August 2015, the father attended at CC Town Police Station with the child. The record notes:
[The father] reports that he was having a conversation with [the child] over the phone while [the child] was at [the mother’s residence] in the care of [the mother]. [the child] started to disclose a domestic argument between [the mother] and her partner when the phone call was cut off. [The father] called back and states that [the child] sounded somber (sic) and he was then concerned for [the child’s] welfare. [The father] attended the above address where he sighted [the child] and no injuries were observed. [the child] told [the father] it was his bedtime and [the father] left.
The following day [the father] states he picked [the child] up from school and he had a red mark on his neck consistent with being grabbed. [The father] questioned [the child] as to how this happened and [the child] stated that he was not allowed the dob (sic).
On the 26/08/2015 while [the father] had custody of [the child], [the child] stated that he had a sore neck and disclosed to [the father] that he was grabbed around the neck by [the mother] on 20 August 2015 and pulled away from the phone whilst talking to [the father]. [The father] took [the child] to [Suburb BB] Medical Centre where he was examined for injuries and disclosed the incident to the treating doctor. There was no observable injury on this date.
The police noted that the child was sighted by them and he had no visible injuries.
The father again took the child to the police on 31 August 2015, four days later.
On 31 August 2015, the father attended at CC Town Police Station and reported an incident which he said had taken place on the evening of 23 August 2015. The father reported that he was showering the child when he noticed a small scratch on the child’s leg. The father said that the child said to him “mummy scratched me with her sharp nail and told me that’s for lying”.
The police then spoke to the child without the father and requested that he show them the injury. The records state:
At the time [the child] was unable to recall which leg was scratched and police were unable to see any visible signs of a scratch. [the child] however did make an allegation similar to the version supplied by [the father], but numerous inconsistencies were noted. [the child] also made reference to bring (sic) present during numerous domestic violence incidents.
On 7 September 2015, the father obtained a referral to Ms EE, a physiotherapist. Dr DD wrote a referral letter to Ms EE stating “Thank you for seeing the child with recent sudden hyper extension/rotation of the neck with minimal remaining neck pain for physiotherapy.” There is no evidence that the father took the child to see Ms EE.
It is not clear how Dr DD concluded that the child had “extension/rotation of the neck” unless that information was given to him by the father. I note that Dr DD referred to “minimal neck pain”.
On 28 September 2015, the father took the child to the P Town rehabilitation clinic where he was seen by Mr FF, an exercise physiologist and therapist.
In a report to Dr DD, Mr FF stated:
[the child] was brought to me by his father and grandmother. I was told that he had neck pain due to being physically abused. When questioning [the child] he told me that his mother had grabbed him by the neck on two occasions.
On assessment [the child] demonstrated a Left rotation deficit within his cervical spine. He demonstrated cog wheeling effect in rotation. Reflexes appeared diminished on the Left when compared to the Right side. On Palpation there was some tenderness within the upper cervical spine, from C1-C3.
On that particular day I then treated with a gentle C1 mobilization, this appeared to clear his cog wheeling and increased ROM. I then reviewed the child one week later where he said he felt better. I have not seen him since.
Annexed to the affidavit of the father is an undated referral by Dr GG of HH Centre for an MRI of the cervical spine. The referral states:
Intermittent neck pain with impaired sensation in both feet
Mum twisted his neck over a month ago
Has also been assaulted by mum a number of times with neck twisting
Also annexed is a further referral for diagnostic imaging by Dr GG which appears to be dated 30 September 2015, stating:
Neck pain
Mum twisted his neck about 5 weeks ago
Intermittent tingling on legs
Obvious depression and tenderness around C3/C4
On 17 November 2015, after he had been restrained from taking the child to doctors, the father obtained a referral to Dr II, a paediatrician.
Almost twelve months later, on 15 November 2016, the father took the child to P Town Radiology Group and again saw Dr GG. The x-ray report states that the child presented with intermittent neck pain with impaired sensation in both feet. It is not clear whether the history came from the child or from the father. The report states “There is normal alignment of the cervical and proximal thoracic spine. Intervertebral discs at C2-C6 levels appear minimally desiccated.” The report concludes, “Minimally desiccated intervertebral disc at C2-C6 levels. No focal abnormality in the cervical/proximal thoracic cord. No nerve root impingement or cord compression seen.”
On 21 November 2016 the father obtained a referral to JJ Hospital (Neurosurgical Outpatient Clinic). The hospital refused to treat the child because of the orders of 7 October 2015. The father then obtained a referral to Dr S at her private practice.
There is no suggestion that any of the medical practitioners, to whom reference has been made, had been told of the orders of 7 October 2015.
Dr S saw the child on 12 December 2016 on a referral from HH Centre. The paternal grandmother accompanied the father and the child to the appointment, in breach of the orders of 7 October 2015.
Dr S’s report commenced:
Thank you for referring [X] a nearly eight year old boy who was brought in for an assessment of his headaches and neck pain. [The child] has a very complicated story. His parents are separated. There is significant concern for domestic violence, drug use, sexual abuse and medical care on the part of the mother. [The child] attends with his dad and his grandmother. Currently he is in the care of his mother 11 days a fortnight and his father 4 days a fortnight.
[The child] has a year long history of headaches which are increasing in frequency. They occur frontally and to the left side of his head. They are associated with left-sided neck pain. When he gets these headaches, he often has to lie down and rest until they settle with some Panadol. He has no nausea or vomiting with these. Sometimes he wakes up in the morning and his neck is very stiff and sore. This may then be followed by a headache. He also describes pins and needles at the bottom of his feet on a regular basis. He found it difficult to describe or detail symptoms but was definite about the headaches and neck pain and spasms.
The headaches started after [the child] was allegedly picked up and strangled at the neck with the neck twisted by his mother (about August last year). This reportedly happened when she was fighting with her partner. [The child] went to ring his father to say that his mother and her partner were fighting again. The mother reportedly came over then knocked the phone out of his hand and picked him by the neck and twisted his neck.
Needless to say his father has significant concerns regarding [the child’s] safety. They describe a variety of other incidences. [The child] did not describe these himself. Incidents include that [the child] witnesses a lot of violent arguments between his mother and her boyfriend. He has witnessed his mother giving oral sex to a young man who was friends with one of [the child’s] older brothers. There is reportedly drug and alcohol abuse in the household that he lives in with his mother. [The child] has tried to tell a teacher with little effect and he says that he told a doctor when he went with his mother and his mother cried and he was told off for making his mother cry (this was reported by [the child] himself). [The child’s] father reports that [the child] has come home from his mother’s place several times with bruises that were reportedly caused by his mother. He also hates going back to his mother’s and gets upset when it is time to leave.
The version of the event which was told to Dr S is significantly more serious than any of the complaints said to have been made by the child.
Dr S continued:
[The child’s] mother is reportedly bipolar and does not take medication. She took [the child] to the doctor for his headaches and an MRI was organised but she had refused to take or neglected to take [the child] for that MRI. His father subsequently took [the child] to have the MRI and has come here for review as there were some findings of relevance to his headaches.
Examination: [the child] clearly has behavioural issues. He was almost deliberately inattentive and disruptive. However, he would stop and cooperate when requested. During this he had quite a fatuous smile. I think he was quite uncomfortable with the discussion. This is only my perception.
[The child] has some tenderness in his neck along the sternocleidomastoid muscle and there was also some mild muscular tension in the neck. Range of movement of the neck was good though he said it was a bit sore to move at the time. He had normal tone power and reflexes distally. Sensation apparently was normal to touch and temperature in his lower limbs.
Dr S concluded “… the discs between C2/3 to C5/6 demonstrate dehydration. This is consistent with previous significant injury. It is very unusual to see this in someone of nearly eight years old. It is usually associated in adults with a previous injury such as a car accident, so something of significant energy.”
Under the heading “Impression”, Dr S stated:
[The child] has a history of a neck injury and symptoms of ongoing head and neck pain that have occurred after this injury. He also has signs on the MRI consistent with previous significant injury and these would be consistent with the injury described. The family say there have been no other incidents to account for such a change.
The changes seen on [the] MRI indicate early degeneration. This may give way to arthritis and neck problems including chronic pain over time. It will require [the child] to take a conscientious care of the neck with ongoing exercise as he gets older.
I am also concerned that some of the pain may be secondary to vascular injury. I think he should have an MRA to exclude any dissection of neck vessels.
[The child] has a very complex history including abuse in varying forms and a significant risk of further harm. As already noted his father has also mentioned that [the child] has come home to his place several times with bruises. I think the family have felt that FACS have not dealt with it well and [the child’s] father is concerned that [the child] will die before anything is done. I have explained that they may not have had enough evidence to remove [the child] from care. There are clearly significant difficulties between him and his ex-partner. [The child] has two older brothers who are now adults.
I have rung the FACS hotline directly as a mandatory reporter and reported my concerns. I have written a form for an MRA and I would like to see [the child] again after it is done.
On 12 December 2016, Dr S referred the child for an MRA, noting “Headaches & neck pain after significant neck injury.”
In cross-examination, both the father and the paternal grandmother conceded that they were aware of the orders made on 7 October 2015 restraining the father from taking the child to medical practitioners. Both said that they were justified in breaching the order because of the serious nature of the child’s injuries and that the action was taken in an emergency.
I do not accept that explanation.
The injury was alleged to have occurred on 20 August 2015.
On 3 September 2015, the child was taken to see the General practitioner by the paternal grandmother. The General practitioner noted “has been off since last Thursday”. The General practitioner also noted that he received a telephone call from the school principal expressing concerns about the child’s school attendance but, since the General practitioner had only seen the child that day, he could not give much information on previous absences. There was no mention of any neck injury.
On 7 September 2015, the father took the child to see the General practitioner. On that occasion he saw Dr DD. Dr DD noted:
[X] IS HERE WITH HIS FATHER WHO IS STILL CONCERNED ABOUT HIS NECK PAIN THAT ORIGINALLY HAPPENED AFTER HIS MUM GRABBED HIM BY NECK (sic) AND SUDDENLY TURNED HIS NECK.
ON INTERVIEW, [the child] confirms the event and shows that he was grabbed by the neck and turned suddenly but doesn’t have any significant remainder of symptoms.
Will need to have physiotherapy for the minimal remaining symptoms.
The father was given a referral for the child to Ms EE for physiotherapy. There is no evidence that he took the child to see Ms EE.
The father took the child to see Mr FF, a physiotherapist on 28 September 2015 and again a week later. He reported that, a week later, when he saw the child, “he said that he felt better. I have not seen him since”.
The father swore an affidavit on 2 October 2015, less than two months after the alleged incident where the mother hurt the child’s neck. In that affidavit, there was no mention of any alleged assault on the child by his mother or injury to the child’s neck. It was put to the father that, had such an incident occurred and had it been of concern, then it would have been mentioned in that affidavit. The father responded that he was not, at that time, aware of how serious the incident was.
I do not accept that explanation. By 2 October 2015, the child had been taken to make a complaint to the police, seen the General practitioner twice and been to physiotherapy.
The father next took the child to a medical practitioner on 15 November 2016. Between September 2015 and November 2016, there was no evidence that the father needed to seek medical attention for the child. How any complaint by the child could be described as a medical emergency some 15 months after the alleged injury is not explained.
On 21 November 2016, the child was taken by his father to see the General practitioner who noted “Ongoing neck pain and stiffness and cervicogenic headaches that originally started after a twisting trauma to the cervical spine which according to father and the child happened after a physical abuse done by mother.”
The matter was before the Court on 7 October 2015, 19 September 2016 and 28 November 2016. No application was made by the father on either of those occasions for the appointment of a single expert or for an order that a suitably qualified medical practitioner examine the child.
On 2 December 2016, the child was taken by the mother to see the General practitioner. Under the heading “Examination”, the General practitioner reported:
examintions (sic) are unreliable
he is jumping and moving his neck when he is not looked at
…
inspection: normal
palpation: tenderness C4-C5 and left SCM
ROM: flex and left side bending are restricted
Under the heading “Reason for Contact” the General practitioner noted, “Neck – Pain … needs to be check (sic) by paediatrician”.
On 7 December 2016, the child was taken to see the General practitioner who created a referral letter to JJ Hospital. I infer that the child on that occasion had been taken to see the General practitioner by the father.
On 12 December 2016, a report was made to FACS, presumably by Dr S stating “[The child] disclosed that last August his mother picked him up by the neck & twisted him. Since that assault the child has been complaining of constant headaches, neck pain & waking up with a stiff neck.”
The FACS records notes:
This matter was initially reviewed by the JRU in November and rejected as the medical connection between the strangulation incident in August 2015 and [the child’s] current symptoms were unclear. Specialist medical assessment has revealed child has suffered serious and severe injury as a result of the strangulation which has resulted in injury and degeneration to the neck. Criminal investigation warranted.
The matter was referred to the D Town JIRT.
The child was interviewed by JIRT on about 19 December 2016. The interview was summarised as follows:
Analysis of Interview:
·Relationship between [the child] and his mother observed, [the child] was not seen to be frightened of his mother, holding her hand and apologising for making her sick ([the mother] was not well at the time of the JIRT interview of [the child]).
·Terms used by [the child] throughout the interview – such as ‘she had the hide to lie at Court (sic)’, ‘my mum she twisted it, when I was like 4, cause she was fighting with her partner’ however later referred to her (mum) and her partner as ‘[Ms Picton’s] psycho crazy boyfriend’.
·Aware of Court information as dad had told him, ‘she lies in Court all the time. Dad has to go to Criminal Court now that’s how bad she is; he told me he has done all the right things’.
·[The child] advised his dad has said ‘mummy is in trouble’
·Reference to his father throughout the interview ‘daddy, the one I love most’.
·[The child] stated that the incident happened ‘when I was like 6, 4, and 2’. the child’s recall of this event commenced with him remembering that he was running across the road to see his daddy as he hadn’t seen him in 9-10 days. Mum hadn’t had any Court Orders so daddy came their (sic) to get me. There was nothing about custody. However the actual event of mum strangling him, [the child] was quite limited in recall stating that mum placed 2 hands around his neck and he told his father later when he went to his place.
·Memory recall at the age of 6 and 4 years was not free narrative and only limited context could be provided by [the child] about what had happened.
·[The child] was asked if there were any other times mum had hurt him, he advised that ‘only when I am in trouble and get a smack on the bum, when [Mr O] was naughtier he used to get smacked with the belt … dad told me’.
·[The child] was able to provide clear particular detail about an occasion where his brother had to be taken to hospital as he had fainting (sic), to the point of the color (sic) armband they put on him.
·[The child] was asked how he felt about his mother and was told ‘I don’t want to live with Mummy, she has done naughty things’ and when asked the same question about his father [the child] said ‘he has had such a hard life in Courts and done all the right things.. he told me (sic) has done all the right things.’
·[The child] confirmed that his father had told him of all the wrong / naughty things mum had done, but stated ‘I don’t remember’.

Dr H stated:
… the Court might consider that until such time as a FACS investigation substantiates risk of harm for [the mother] there is no justification for changing [the child’s] residence. Unless immediate risk of physical harm is established for the father the Court may not be minded to extinguish contact, despite the obvious psychological harm of his tactics to align [the child] with him against the mother. If so, harm minimization strategies will be required.
Dr H set out a table of strategies for this family, commencing with supervised changeover, proceeding to supervised access and, as a last resort, no contact. At the time she interviewed the family she was of the view that supervised changeover was appropriate. However, she stated:
… if the non-residential parent were to withhold [the child] without proven justification or otherwise contravene Orders the disruption to [the child] would warrant moving to [supervised contact]. If thereafter visit supervisors report that the non-residential parent continues to draw [the child] into adult disputes or denigrate/undermine the other parent, then contact should be extinguished.
Dr H concluded:
On the basis of aggregated information it is my concluded opinion that no Court Orders are conceivable which could guarantee [the child] an on-going meaningful relationship with both his parents. Despite the obvious benefits for [the child] of honouring all his family ties it seems likely that over time the stress of maintaining a relationship with the non-residential parent will outweigh the benefits due to the intractable hostility of paternal kin towards the mother. No findings of fact are made with regard to [the child] sexual abuse allegations or with regard to the cross-allegations about family violence between the parents, and between the mother and paternal grandmother. [The child’s] expressed preference for living with his father should not carry determining weight as he is too young to objectively evaluate his own best interests. Determining weight should be given firstly to any substantiated risks of child abuse or neglect, and secondly to the risk of psychological harm.
Dr H concluded, “The Court should expect this matter to return to Court repeatedly if any Orders are made for [the child] to spend any unsupervised time with his non‑residential parent.”
Dr H was provided with the trial affidavits and copies of material which had been produced on subpoena before she was cross‑examined. Much of Dr H’s evidence in her report was unchallenged.
In cross-examination, she recommended that the child live with his mother and have no contact with his father. She said, “The determining consideration is that he has to be insulated from this distractive toxic conflict.”
She pointed out that the predictions which she had made in her report in 2015 had come to pass. The father has continued to breach court orders, he had been unable to contain his behaviour in supervised contact and there have been more applications to the Court. She said that her opinion had strengthened because of the behaviour of the father.
Dr H said:
First of all, it appears that the father has consistently been non-compliant with court directions, both the letter and the spirit. He has withheld [the child], taken [the child] to medical appointments against – without the mother’s opinion and even against court orders. He has continued to bring [the child] into contact with the paternal grandmother despite court orders, even in flouting that – that requirement in the presence in the [V Centre] supervisor, I saw in one report. That – that confirms my opinion that the father does not see how harmful it is to the – well, first of all, he doesn’t take any notice of – of advice or even orders that this is not a helpful thing to do for [the child], and, secondly, that he has no insight into how harmful it is to [the child] to have him caught in between two parents in this way, because he’s continually – according to [V Centre] reports, it seems like he’s continually saying inappropriate things which are – are attempting to make the child align with him against the mother. So I see … no evidence that that situation has improved. It appears to have worsened.
Dr H noted that the material produced on subpoena indicated that the child’s situation with behaviour and schooling had improved:
The other bit of evidence that seems relevant is that I was glad to see that [the child’s] recent therapy reports and a recent school report appears to indicate that since he has been having counselling and having no contact with his father, and the mother has apparently been engaged in being a bit more authoritative with him as a parent, his behaviour and – has improved and his mood appears to have calmed.
Dr H said that, for the child, although he loves his father, the stress of maintaining the relationship with his father outweighs any benefit of his having a meaningful relationship with his father. She said that the stress for the child of having to please both of his parents created “an intolerable situation for a young child who doesn’t have the cognitive resources to resolve it.” She said that the child is a child who is “less than averagely resilient whatever the diagnosis might be”.
Dr H said that she attributed the changes in the child’s behaviour and the alleviation of his symptoms of stress to the fact that he was not seeing his father. She said, “being caught in between conflict between your parents is bad for any little kid, but for someone who appears to be neurologically atypical and less than normally resilient it is especially damaging.”
Dr H said that part of the reason for the observed improvement in the mother’s parenting of the child was the removal of the stress caused to the mother by the father’s contact with the child. Dr H said:
She has had professional advice. But when woman (sic) live in high conflict and/or coercive/abusive relationships they are preoccupied with the difficulties they have managing that aspect of their adult related (sic) and so there (sic) less of – emotionally available to the children, they’re more emotionally upset and they can’t be such good parents… It impacts on [the child], because the mother can’t parent as effectively as she might be able to if she was less stressed.
Dr H said that the mother’s engagement with therapy and her acknowledgement that she needed to change her parenting behaviour was a positive event for the child, but that:
I have seen nothing that indicates that the father sees any shortcomings in any of his own behaviour and, therefore, feels there is (sic) anything to address. I don’t see any – any basis for any intervention working. There has to be an acknowledgment that there is a problem before you can engage people in solving it.
She also said, in relation to the mother’s engagement with counselling:
I think it’s a promising sign. Remember, I have been working with families and children for 40 years and what I know as a result of that is change doesn’t come easily, but it doesn’t come at all unless you make some effort to change, and it is encouraging that she has both recognised that she needs to make some changes and tried to engage with people that would help her. I – I don’t think she has changed her personality organisation. It wouldn’t have changed that – that rapidly. But … the information I’m most encouraged about is the one from [Ms W], who reports that the mother has apparently instituted the – the parenting practice that that psychologist recommends, and conscientiously attends therapy with the child, and appears to be doing her best. Now, within her limitations, that’s all we can expect of her: that she does her best. That’s better than that she does her worst. She’s doing her best, according to the child’s therapist.
With reference to the incident at McDonald’s at Suburb T in December 2016, Dr H said “that’s exactly what we want to protect children from … a child like this, if there were ever to be any further contact that was unsupervised, which I wouldn’t recommend, he should never be in the presence of both parents at the same time ever again.”
In relation to the father taking the child to various medical practitioners, Dr H stated:
…unless the court has – has found that there is evidence that [the child] was physically harmed by the mother and there’s a case to remove [the child] from the mother, I think the best thing is the father is never allowed to have any unsupervised contact with [the child] again, and make it impossible for him ever to do that again to [the child]. I saw that he was advised by several doctors – and I think the paternal grandmother was too – that repeated X‑rays and MRIs are harmful to children. To keep insisting on that is neglect – well, in fact, it’s medical abuse.
Dr H said that, if the father continues to spend time with the child, the “tug-of-war” of the father taking the child to counselling and medical interventions would continue.
Having read the reports from V Centre, Dr H said that she had no confidence that supervision would be adequate to protect the child from the father’s prompting and coaching and that even supervised contact would be too unsettling for the child to be worthwhile. She said that the father’s “priming” of the child to criticise his mother undermines the child’s confidence in his mother’s ability to provide suitable care for him and that this was very stressful for the child. She said that the child “has got to be on edge trying to work out what makes his dad happy.”
Dr H noted that the reports from U Town Public School recorded the child being distressed on the days after the supervised contact with his father.
Dr H said that the effect on the child of the conflict between his mother and his paternal family would have long term detriments. She stated:
The other thing that would happen there is because so much effort is put into trying to resolve this kind of difficulty, [the child] has less effort – less emotional and cognitive energy available for his proper developmental tasks, ie. learning at school, making friends and learning how to control his own emotions. So he would – he would not overcome his problems and his problems would become worse. His problems of self-control and anti‑social behaviour would become worse.
In relation to the relationship between the parents, Dr H said:
They have a complex hostile dynamic which was fuelled from the personality deficits of both of them, but the father’s hostile obsession with the mother that he … displayed to me at interview and displayed in everything he said and his mother was alleged to have said, is quite consistent with a pattern of coercive controlling behaviour in a spousal relationship. Now, that is not to say that the mother does not behaviour (sic) intemperately violently and provocative as well, or did not in the time that they were together. That’s a complex, entrenched, dysfunctional, relational dynamic and you can’t say it’s all up to one person or the other, but it’s toxic for children to be near.
In relation to the father’s assertion that the mother suffers from a bipolar disorder, Dr H was sceptical. She said:
If the person is not complying with medication and has alternating episodes of either suicide or despair or hyper-mania, that compromises his/her parenting capacity. But I would make another point and that is in this jurisdiction, I am always highly – highly suspicious of any diagnoses of bipolar disorder because a diagnosis of borderline personality disorder is much more likely in this jurisdiction. And particularly if the person hasn’t been hospitalised for manic episodes, and particularly if the … diagnosis is made on one brief encounter, particularly if it’s made without full knowledge of the – all the medical history and without confirmation from collateral sources. Research on borderline personality disorder, for example, indicates that it’s often a very long time before the person gets the correct diagnosis and the most common incorrect diagnosis is bipolar disorder.
She described the father’s attitude towards the mother as, “delusional, rigid, obsessional, narcissistic and egocentric”. She said that even if the valid indicators of risk to the child diminish, the father’s problematic behaviour will not reduce “in tandem”.
Dr H said that the father showed “a great willingness to flout orders” and she viewed his taking the child to medical practitioners as part of “the tactic to undermine the mother” and to be of tactical advantage to him.
She considered that the father’s behaviour had the effect of attacking the child’s loyalties which is psychologically destructive for the child. She described the father’s attempts to show that the mother should be disqualified from the child’s life as “unremitting”.
If unsupervised time was allowed, Dr H predicted that the father would continue his efforts to align the child with him against the mother. She said:
… with unsupervised time, what …we would see is the father would do that more and more. And he would withhold again. And, if possible, he might in time even be able to convince [the child] to come over to his camp. Now, there is a good reason why children often … side with the aggressor or the coercive parent. And that is they think, “I’m going with the strength. I’ll go.” You know, this person might be a bully, but they can protect me. They’re stronger than the other one. So the mother has been ineffectual and scatty in the past. And I – I don’t doubt any of those past reports of her erratic behaviour, etcetera. But from [the child’s] point of view in time, he might see her as ineffectual, the father as strong, and he’s going to side with the strength. And you will have a case of alienation versus estrangement shaping up. There is just no constructive way for the child to have unsupervised contact with his father, if the court deems that the mother is a safe enough parent.
She was concerned that the father would encourage “factitious” medical complaints in his quest to discredit the mother.
Dr H said that the child’s behaviour after seeing his father, as reported by the mother, was exactly as she would have expected. She said:
When [the child] is very stressed – like having to please the father, stress because he’s uneasy, he doesn’t know what’s happening, he’s getting conflicting information, he’s confused – when he comes back, he’s going to be in a highly emotionally aroused state. And this is a child who doesn’t have, according to the psychologist who treats him, and other, does not – including the paediatrician, does not have the normal ability to – to emotionally down regulate that other children have. So, of course, he’s going to act up and be a bit stroppy and – and hyped up. That’s exactly what I would expect. It’s a common – it’s a common thing … to be heard in this jurisdiction.
In relation to a continuation of supervised contact, Dr H said:
There’s no way even the supervisors can control the father from making undermining, unsettling remarks and having unsettling interaction with [the child]. If the court decides that – I realise too that the court is often reluctant to totally extinguish contact unless there’s intolerable risk of harm. I think there’s intolerable risk of psychological harm. I’m not alleging physical attack. However, children sometimes would like to know who the other person – who their immediate forebear was and if that person still has some interest in them. And that is sometimes helpful to avoid them drawing conclusions harmful to their self-esteem. The other argument for identity contact is that if it goes on until the child is old enough to make criterion based judgements, it will be [the child] who rejects the parent, rather than [the child] who feels rejected by the parent. They’re the usual arguments for it. If the court is minded to make such orders, then two or four times a year at a most I would suggest. Not because I think there’s any benefit to [the child] in the contact, and not because I think it won’t be unsettling. It will be. It’s just a question of dose. [Un]settling him every fortnight is not the same as [un]settling him two, three or four times a year. The latter is recoverable. I’m not suggesting it will be beneficial. But insofar as there is a possibility that the child might otherwise think his father had rejected him and there’s something wrong with him, that’s the only benefit. And – and two or three times a year, four times at most, would be enough.
She said that giving the mother sole parental responsibility would not be a sufficient safeguard and that there needs to be orders restraining the father from coming to the mother’s home, contacting her, coming to the school, attending sporting events, and contacting the child’s doctors.
Dr H clarified her evidence in relation to “identity contact”. She did not recommend identity contact because of her concerns that no supervisor could contain the father’s harmful behaviour. She said that such contact, even for a limited few times each year, may be more harmful than beneficial.

CONSIDERATION

I accept the evidence of Dr H that, for the child, the issues to be determined are which parent is potentially the most damaging as a primary caregiver; and does the stress involved in maintaining the child’s relationship with the secondary caregiver outweigh the benefits conferred by that attachment?
I will consider these issues having regard to the factors set out in s 60CC(3) of the Family Law Act 1975 (Cth).

any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

When the child was interviewed by Dr H, he expressed a clear view that he wanted to live with his father.
However, I accept the evidence of Dr H that the child’s views should not carry determinative weight because he was too young (at the time of the interviews) to evaluate his own best interests. I consider that, currently aged eight, he is still too young to determine what is in his best interests. I am conscious of the warning given by Dr H that the child may be aligning himself with the parent he perceives to be stronger. I also accept that the child’s views may be influenced by his father’s tireless campaign to align the child with him against the mother.

the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child)

The only member of the child’s family with whom he appears to have an uncomplicated, positive relationship is his maternal grandfather.
I accept the evidence of Dr H, which was not challenged, as to the attachment that the child has to each of his parents. As noted earlier, Dr H stated:
It is unlikely that [the child] could have a secure attachment to either parent given that both display insecure attachment styles and very poor reflective function … In childhood, attachment behaviour represents a child’s best strategy to elicit whatever nurturance may be available from a particular caregiver (including an inconsistently responsive or dangerous caregiver).
Dr H stated that it is not possible to observe whether a child displays secure attachment outside of laboratory conditions but that, on observation, the child displayed mixed indicators.
Dr H observed that the child’s interaction with his mother was warm and amiable. He was calmer and more reserved when he was brought to the interview by his mother. He displayed more “secure base behaviour towards his mother than his father”.
He was more affectionate with his father, more “upbeat” and more energetic. Dr H wondered if the child was exhibiting the “false brightness” which she considered was “seen in children whose attachment strategy is compulsive caretaking / compliance with an emotionally needy, demanding or feared parent”.

Dr H made no assessment of the child’s relationship with his paternal grandparents or his brothers.

the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child
(iii) to communicate with the child

No criticism can be levelled at either parent in relation to their efforts to be involved in the child’s life.

the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

Neither of the parents is employed. There is no evidence about the level of child support paid by the father when he was employed but, as there is no complaint by the mother, I assume that the father paid child support as assessed when he was employed.

the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The child has not spent any time with his father since July 2017. He has told Ms W that this makes him sad.
Ms W has reported a steady improvement in the child’s behaviour since contact with his father ceased. She speculated that this may be partly due to less contact with his father.
It is not possible to know how much time the child has spent with his paternal grandmother since the orders of 7 October 2015, except to say that he clearly spent time with her, despite the prohibition contained in those orders.
Mr J lives in the same house as the child. There are no barriers which prevent Mr O from seeing the child by arrangement with the mother.

the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

The incident that occurred during the changeover at McDonalds on 15 December 2016 raises concern about the practical difficulty that would be posed by orders requiring changeovers between the parents. I am not satisfied that the parents are capable of conducting themselves in a child-focused or civilised manner if orders were made for changeover.
Further, Dr H recommended that the child “should never be in the presence of both parents at the same time ever again”.

the capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

The mother’s parenting of the child attracts substantial criticism.
Whilst it is not possible to know what the child experienced in his mother’s care in May 2013, by October of that year the child told JIRT, when questioned about the mouth on the body chart, “You stick a dick in your mouth”.
In 2013, the mother’s life was chaotic and characterised by house parties at which there was sexual activity. The mother gave evidence that the parties in her house, where the child was living, were arranged by her older sons and that the parties did not occur when the child was with her. Her explanations of occasions when a man at a party at her house attempted to rape her, of threats to harm her and Mr O if the police were told about various sexual offences committed at a party, and of excess consumption of alcohol at parties, was extremely concerning. She admitted that she had a sexual encounter with K, a friend of one of her older sons, although she was adamant that the child had not been present.
The child’s statements to JIRT in October 2013 and to Ms B in 2014, suggest that he has been exposed to adult sexual behaviour. However, I accept the evidence of Dr H that, at this time, it would be difficult to establish how and when that exposure occurred. The statements by the paternal grandmother suggest the possibility of involvement by the child’s brother, Mr J.
The paternal grandmother was strongly critical of the mother’s lack of attention to the child’s medical care, citing, particularly, the fact that the child had scabies over a period of time and that the mother did not treat that infection appropriately. I do not accept that criticism. The child’s medical records, produced by his general practitioner, evidence numerous attendances on the general practitioner for advice and medication in relation to the problem. I accept that the diagnosis was confused by the fact that the child also suffered from eczema as is noted by his general practitioner. Nothing in the records of the general practitioners suggests that the child’s treating doctors found the mother’s attention to the problem lacking.
The child’s dysregulated behaviour, both at school and at his mother’s home, is a matter for which both parents must share responsibility. I accept the evidence of Dr H that neither parent has demonstrated good, consistent parenting.
The alleged sexual abuse of the child by M, a child of about his age, is not a matter for which the mother should be criticised. If it is the fact that two children, then aged about seven and eight years, showed each other their genitals, that is not a circumstance which should give rise to criticism of the mother.
The relationship between the mother and Mr A appears to have been stormy but I do not accept that it was characterised by family violence to the extent that the father alleges. The father was not present and is reliant on what he has been told by others, notably the child. Whether the child’s version of any event he relates to his father is accurate is a matter which has to be considered within the context of the pressure that Dr H observed the child is under to please his father. An examination of the mother’s complaints to the police about Mr A supports a conclusion that their relationship was fraught with arguments but not physical violence. The mother has not re-partnered since she and Mr A separated in December 2014.
The father’s allegations that the mother injured the child’s neck have been exhaustively investigated by FACS and by the police and have not been found to have been substantiated. By the time the child was interviewed by JIRT in December 2016, he had limited recall of the event (or events, which is not clear). The changing and escalating nature of the complaints made by the father and the paternal grandmother to various medical practitioners and other authorities, often in the presence of the child, give rise to the likelihood that, whatever happened, the child has been exposed to telling and retelling and, most likely, either overt or covert encouragement to retell.
As the report of Dr S to FACS made on 26 March 2017 confirms, it is not possible to know whether a particular event caused the injury she observed.
I accept the evidence of Dr H that the mother is a less than adequate parent.
However, I also accept the evidence of Dr H that the efforts that the mother has made, since at least the beginning of 2017, if not earlier, have had a real effect on the child’s progress. She has engaged with counsellors, both for herself and for the child, and has learned parenting strategies which have assisted her to help the child regulate his behaviour. The improvement in the child’s behaviour has been noted by both his school and by Ms W, his psychologist.
The mother has engaged with the child’s school and his teachers. She attends weekly meetings at the school to discuss the child’s progress and needs.
She has been effectively a sole parent since December 2016 when the father’s unsupervised contact with the child was suspended and since that time, any improvements in the child’s well-being must be attributed to her and to her efforts to engage assistance for the child.
There is no evidence that she has set herself on a course to alienate the child from his father. Until recently it was her view that the child needed to spend time with his father.
The father’s capacity as a sole parent of the child is untested.
There is no issue that he can physically care for the child.
He is able to assist with the child’s education. Whether he would make decisions in relation to the child’s education based on the child’s best interests or on the child’s wishes is a matter for concern. In cross-examination, asked about whether he would leave the child at U Town School or move him back to N Town Public School, the father said he would leave that decision up to the child. The child is eight years old. This is a decision for a parent. This evidence gives rise to concerns about the father’s ability to provide firm boundaries and discipline for the child. Their relationship in the past has featured showering the child with gifts and winning his alliance. More is expected of a parent.
The father can be criticised for withholding the child from school in 2015 but I accept that he did so because he was afraid that the mother would collect the child from school. The father does not accept any responsibility for Mr J’s poor school attendance, laying all of the blame on the mother. I do not accept that position. The parents had an equal responsibility to ensure that Mr J attended school. They failed in that responsibility equally.
The father, in cross-examination, was unable to accept that he had played any part in the difficulties that the child has experienced. He was adamant that everything that has occurred has been the mother’s fault.
The most significant criticism of the father is that his entrenched antipathy towards the mother leads him to denigrate her and to impose upon the child his negative views about her. I have already set out Dr H’s evidence about the effect of the father’s behaviour upon the child.
In interview with Dr H and in cross-examination, the father was unable to find anything positive to say about the mother. He refused to accept objectively reasonable explanations for events, such as the child comparing the squeaky couch at V Centre to his mother’s squeaky bed because he bounced on her bed, preferring to accept, and indeed insisting, that the only explanation was that the mother had sex while the child was in her bed.
The events of 15 December 2016 are instructive as to the father’s capacity to parent the child in a manner which promotes the child’s welfare. He was required to return the child to the mother. A time and place was arranged. The father was not capable of executing a smooth and uneventful handover. Rather, the child was involved in an incident which must have been very distressing for the child, involving the mother, the maternal grandfather, the paternal grandmother and the police.
I do not accept that a capable parent cannot facilitate a changeover from that parent to the other, regardless of the wishes of the child. At the very least, this incident demonstrates that the father has no capability to differentiate between his own interests and the child’s needs when the two are not identical.
The father has enlisted the child in his quest. In cross-examination, the father said that he had taken the child to the police to make complaints on three or four separate occasions and that his mother had taken the child on another three occasions. He did not agree with Dr H’s evidence that taking the child to repeated interviews, doctors and counsellors seeking disclosure was in itself a form of abuse.
His criticism of the mother was unrelenting. I accept that, in the event that the child lives with him or has any contact with him, his attempts to align the child with his own views of the mother will continue.
The attitude of the paternal grandmother towards the mother is, if anything, more trenchant than that of the father. I do not accept the evidence of the paternal grandmother, in cross-examination, that she has not denigrated the mother. Her complaints have been made to schools, to FACS, to police, to counsellors and to doctors. On occasions, the child was present. She has been reminded on more than one occasion that such conversation in the child’s presence is inappropriate and harmful to him. She appears unable to contain herself.
It is likely that, in the event that the paternal grandmother has any contact with the child, he will be exposed to her relentlessly negative views of the child’s mother.
In summary, while, until recent times, the mother’s care of the child left much to be desired, she has, since December 2016, as his sole carer, made progress in caring for his emotional and psychological health which has, in turn, had a positive influence on his educational progress.
The father, in contrast, is not criticised in relation to his physical care of the child but has embarked on a course of action which, if facilitated, will lead inexorably to psychological harm to the child. In that course, he is aided and abetted by the paternal grandmother.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

Perhaps the greatest responsibility of parenthood is the responsibility to model to the child respectful behaviour towards the other parent and give the child permission to love each parent.
In this responsibility, the father has failed.
Further, the father has demonstrated contempt for the orders made by the Court in his repeated breaches of orders. That is not a model of behaviour that a responsible parent should demonstrate.

any family violence involving the child or a member of the child's family

I am unable to make any findings about the myriad of allegations of physical violence made by each parent against the other. I am similarly unable to make any findings in relation to the allegations made by the mother and the paternal grandmother, each against the other.

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

Dr H, in her report, predicted that, if the father continued to have contact with the child, there would be further applications to the Court. That prediction was fulfilled.
The father has failed to comply with orders of the Court.
He has retained the child, contrary to orders, requiring court intervention in March 2015, September 2015 (when I note that the return was voluntary but only after the mother filed an application), and in December 2016.
He has consistently ignored the order made on 7 October 2015 restraining him from permitting the child to be bought into contact with the paternal grandmother. How much contact she had with the child is not clear. She went with the child to a number of doctors, most recently Dr S. In cross‑examination she said that, although she was aware of the orders of 7 October 2015, she was having a lot of contact with the child and taking him everywhere.
The father has also consistently ignored the order made on 7 October 2015 restraining him from taking the child to medical practitioners.
I accept the evidence of Dr H that any further contact between the child and the father will lead to further litigation.

CONCLUSION

X is a vulnerable child who has suffered behavioural and educational problems. He needs to have every possible opportunity to grow up and reach his full potential. He cannot achieve that goal if all of his energies are expended on weathering the storms of the conflict between his parents.
All of the evidence leads to the conclusion that the child must live with one parent and have no contact with the other.
If the child lives with his father, he will eventually adopt his father’s contemptuous attitude towards his mother and have no possibility of a relationship with her in years to come.
In concluding that the child will live with his mother and spend no time with his father, I have given the greatest weight to the following matters:
·The inexorable denigration of the mother by the father and the paternal grandmother and the inevitable impact of this denigration upon the child.
·The continued disregard of Court orders by the father and the paternal grandmother.
·The improvement in the child’s psychological well-being and behaviour since the mother has been his sole parent as observed by his teacher and psychologist;
·The mother’s efforts in seeking counselling for herself and the child and in making positive changes to her parenting for his benefit;
·The lack of evidence that the mother has denigrated the father in the child’s presence or sought to alienate him from his father. If the child lives with his mother, there is a possibility that, in later years, he will be able to reinstate a relationship with his father.

IDENTIFICATION CONTACT

The ICL proposed that there should be identification contact in a supervised contact centre twice each year in June and December.
On behalf of the ICL it was submitted that the purpose of the contact was to ensure that the child understood that his father had not abandoned him. That proposition was not put to Dr H.
I accept the evidence of Dr H that the father’s conduct cannot be contained by supervision and that identification contact could be more harmful than beneficial for the child.

PARENTAL RESPONSIBILITY

Both parents agreed that the parent with whom the child lives should have sole parental responsibility.
In all of the circumstances of this case, any other order is likely to lead to further conflict.

BIRTH CERTIFICATE

When the mother registered the child’s birth, she did not name his father.
There is no dispute about the child’s parentage and the child’s birth certificate should name both his parents.
Both parties consented to the application of the ICL that the birth certificate be amended.

I certify that the preceding four hundred and ninety-eight (498) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 12 October 2017.

Associate:

Date: 12/10/2017

[2017] FamCA 811

12 October 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies