Pullman and Garafolo
[2020] FamCA 3
•9 January 2020
FAMILY COURT OF AUSTRALIA
| PULLMAN & GARAFOLO | [2020] FamCA 3 |
| FAMILY LAW – CHILDREN – Best interests – With whom the child lives and spends time – Parental responsibility – Where the mother seeks shared parental responsibility and that the child live with her and spend time with the father – Where the father seeks sole parental responsibility and that the child live with him and spend time with the mother – Where the mother made allegations that the father sexually abused the child – Where the mother submitted the father posed an unacceptable risk of harm to the child however did not press the allegation of sexual abuse in closing – Where the Court finds that the father did not sexually abuse the child – Where the mother has a diagnosed delusional disorder – Where the mother does not have the capacity to promote a relationship between the father and the child – Where the Court finds that the mother presents an unacceptable risk of emotional or psychological harm to the child however this harm may be ameliorated by ongoing treatment of the mother and change of primary residence – orders that the child live with the father and the father have sole parental responsibility – interim orders for the child to spend time with the mother – interim orders for the mother to continue psychiatric treatment and report to the Independent Children’s Lawyer as to her participation in such treatment. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61C, 61DA, 65D, 65DAA |
| Evidence Act 1995 (Cth) s 140 |
| Donnell & Dovey (2010) FLC 93-428 Mulvany & Lane (2009) FLC 93-404 Poisat & Poisat (2014) FLC 93-597 U v U (2002) 211 CLR 238 Wang & Dennison [2009] FamCA 206 Wentworth & Wentworth [2019] FamCA 57 |
| APPLICANT: | Mr Pullman |
| RESPONDENT: | Ms Garafolo |
| INDEPENDENT CHILDREN’S LAWYER: | Macgregor Solicitors |
| FILE NUMBER: | MLC | 6923 | of | 2017 |
| DATE DELIVERED: | 9 January 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | McEvoy J |
| HEARING DATE: | 26-28 August 2019 and 5 September 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hannan |
| SOLICITOR FOR THE APPLICANT: | Rush & Hampshire |
| COUNSEL FOR THE RESPONDENT: | Mr Byrne |
| SOLICITOR FOR THE RESPONDENT: | Mmh Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr O'Connell |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Macgregor Solicitors |
Orders
IT IS ORDERED THAT:
All previous interim orders are hereby discharged.
The father have sole parental responsibility for the child of the relationship X (“the child”) born … 2014.
Save for in the event of an emergency, prior to making any long term decisions concerning the child the father shall:
(a)advise the mother of the intended decision or decisions to be made by email;
(b)seek the written response from the mother in relation to the intended decision or decisions;
(c)properly consider any such written response by the mother prior to making a decision; and
(d)advise the mother as soon as reasonably as practicable of the ultimate decision.
The child live with the father.
The parties do all such acts and things to enrol the child at Suburb B Primary School commencing 2020.
Both parties keep the other informed of any change of address or contact telephone number within seven days of the change.
The mother be restrained by injunction from taking the child to any counsellor, psychologist or other such medical professional without the written consent of the father.
The father be at liberty to apply for a passport for the child, without requiring the signature of the mother.
The parties and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent and, or alternatively, their family to or in the presence or hearing of the child, and from permitting any other person to do so.
A copy of the reasons for judgment of the Honourable Justice McEvoy dated 9 January 2020 be provided by the Independent Children’s Lawyer to the mother’s treating psychiatrist and the Department of Health and Human Services within seven days of publication.
In the event that either parent issues an application for parenting orders or an enforcement or contravention application in respect of the child within the next 24 months the application be listed, if practicable, before the Honourable Justice McEvoy.
The matter be adjourned for mention before the Honourable Justice McEvoy on 7 December 2020.
All extant applications otherwise be dismissed.
IT IS FURTHER ORDERED THAT:
Until further order, the child spend time with the mother as follows:
(a)from 10.00 am on 15 January 2020 to 10.00 am on 22 January 2020;
(b)each alternate weekend from the conclusion of school Friday or 5.00 pm on a non-school day, until the commencement of school on Monday or 5.00 pm on Monday if a non-school day commencing Friday 31 January 2020, with the mother to collect the child from school or the father’s home as appropriate, and the father to collect the child from the mother’s home as appropriate;
(c)each Wednesday evening from 4.30 pm until 7.30 pm (with changeover to occur at the father’s home) commencing 5 February 2020;
(d)for one half of each of the school term holidays as agreed and failing agreement the first half in even numbered years (commencing the last day of school and concluding 5.00 pm on the middle Saturday) and the second half in odd numbered years (commencing 5.00 pm the middle Saturday and concluding 5.00 pm the last day of the holidays);
(e)for two weeks in the long summer holidays commencing 5.00 pm the last day of school in even numbered years and commencing 5.00 pm on 10 January in alternate years;
(f)on Mother’s Day from 10.00 am until 5.00 pm;
(g)on the child’s birthday from the conclusion of school until 6.00 pm if the birthday falls on a school day and from 12.00 noon until 5.00 pm if the birthday falls on a weekend where the child is in the father’s care;
(h)on the mother’s birthday from 3.30 pm until 7.30 pm;
(i)from 5.00 pm Christmas Eve until 12.00 noon Christmas Day in even numbered years and from 12.00 noon Christmas Day until 5.00 pm Boxing Day in odd numbered years; and
(j)such further or other times as may be agreed in writing between the parties.
Until further order, the mother’s time referred to in order 14 herein shall be suspended as follows:
(a)order 14(b) and (c) herein shall be suspended during school holidays;
(b)on Father’s Day from 10.00 am until 5.00 pm;
(c)on the child’s birthday from 12.00 noon until 5.00 pm if it falls on the mother’s weekend;
(d)on the father’s birthday from 3.30 pm until 7.30 pm;
(e)from 5.00 pm Christmas Eve until 12.00 noon Christmas Day in odd numbered years and from 12.00 noon Christmas Day until 5.00 pm Boxing Day in even numbered years; and
(f)during the second half of National Aborigines and Islanders Day Observance Committee (“NAIDOC”) week from 9.00 am Thursday until 5.00 pm Sunday.
Until further order, where it is not specified in these orders, the changeover location shall be as agreed and otherwise at a midpoint between the mother and the father’s home.
Until further order, the mother continue to attend upon her treating psychiatrist and shall continue to attend all appointments as directed and follow all other lawful directions of her treating psychiatrist in relation to her treatment including, but not limited to, taking medication.
Until further order, the mother authorise her treating psychiatrist to provide a report to the Independent Children’s Lawyer at least once every three months, briefly outlining:
(a) her attendance at appointments;
(b) her compliance with treatment; and
(c) any other relevant matters;
and the mother shall meet all costs associated with such reporting and attending her treating psychiatrist.
Until further order the mother be at liberty to:
(a)communicate with any school or education-related professional involved with the child;
(b)receive school reports, newsletters, photograph forms or any other information usually provided to parents;
(c)attend at the child’s school events such as parent-teacher interviews, graduations, concerts, sporting events and any other event that parents are usually invited to attend;
(d)communicate with any medical or allied professionals providing treatment or care of the child;
and these orders may be produced as evidence of such authority.
Until further order, both parties keep the other informed of any illness or injury suffered by the child whilst in their respective care, including providing details of medical professionals attended upon and medication prescribed and both parties shall be permitted to liaise with the medical professionals in relation to the child’s medical condition.
Until further order, save as required by order 3, the parties shall communicate in relation to issues involving the child by SMS message, including providing details of the child’s routine, medical issues and diet.
The father be permitted to travel overseas with the child for a period not exceeding four weeks every alternate year, and, until further order, the mother shall be afforded make up time upon the child’s return.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, 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 to adjust to and comply with an order are set out in the annexure to this order 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 Pullman & Garafolo 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 MELBOURNE |
FILE NUMBER: MLC 6923 of 2017
| Mr Pullman |
Applicant
And
| Ms Garafolo |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Amended Initiating Application filed on 21 May 2019 the father has sought sole parental responsibility for the child of the relationship, an order that the child live with him, and various ancillary orders providing for the mother to spend time with the child subject to her engaging with a mental health professional to receive appropriate treatment. The orders sought by the father contemplate that the child, presently aged five, will commence her education at a local primary school proximate to the father’s new residence in outer Melbourne. The parties also sought various property orders, however these aspects of the dispute were resolved on the first day of the trial.
The father brings his application in circumstances where the mother has made several serious allegations against him. They include that he sexually abused the child, then aged two, by masturbating while he was in the bath with her; that the child, then aged four, had said to the mother that she had “dada’s sperm in me” and that this is attributable to the father; and that some months after this incident the father masturbated in the presence of the child on an occasion of supervised time. In consequence of these allegations the father has had only limited and supervised time with the child in accordance with court orders for approximately two years prior to the conclusion of the trial in September 2019. During that period the mother unilaterally suspended the child’s time with the father on various occasions.
By a Further Amended Response filed 7 August 2019, the mother sought sole parental responsibility for the child and that the child live with her. She maintained the allegations of serious sexual impropriety against the father mentioned above, seeking orders that the child have no time with the father if the Court were to determine that the father was an unacceptable risk to the child, together with certain other orders providing for limited supervised time, and unsupervised time, depending on the Court’s finding on the question of whether the father posed an unacceptable risk to the child.
The trial of the proceeding commenced on 26 August 2019, having been the subject of an earlier application by the mother for an adjournment, which I dismissed.[1] It ran for three days, before being adjourned to 5 September 2019 for the parties to consider their positions, the hearing of any further evidence, and for closing submissions. The focus of the trial was on the allegations of sexual misconduct which the mother had made against the father, and the state of the mother’s psychiatric health. The mother maintained that the father spending time with the child constituted an unacceptable risk, that she should have sole parental responsibility for the child, and that the child should live with her. Both the mother and the father gave evidence and were cross examined extensively about these allegations, other allegations of family violence made by the mother against the father, and various other matters concerning their respective suitability as parents.
[1] [2019] FamCA 467.
The father’s mother and her husband also gave evidence at the trial. They had been responsible for supervising some of the limited time which the father had been afforded with the child in the aftermath of the mother’s allegations. Evidence was also given by a psychiatrist, Dr C, about an assessment that he had made of the mother and the father in November 2017. Dr C had concluded that the mother was likely suffering from a significant mental illness (delusional disorder). Dr C did not consider that the father was suffering from a personality disorder, nor that he represented any risk to the child from a psychiatric perspective. Evidence was also given by a forensic psychologist, Dr H, who had prepared a clinical family report dated 10 April 2018 and an updated clinical family report dated 12 August 2019. Amongst other things, Dr H considered that the mother was suffering from a delusional condition. He did not consider that the child was at any risk from her father.
Upon the matter resuming on 5 September 2019 the mother changed her position, to an extent. It was submitted on her behalf that having heard the evidence of Dr C and Dr H (whose reports she had prior to the commencement of the trial), she no longer pursued a finding that the father constituted an unacceptable risk to the child. However the allegations of sexual impropriety which the mother had made against the father with such vigour were not explicitly abandoned. It seems that they were simply not pressed. It is difficult to resist the conclusion that the mother’s concession in this respect owes more to a concern that the child would be removed from her, than to a realisation that her allegations were without foundation.
The mother maintained that she should remain the primary carer of the child, and that even were the Court to find that the allegations she had made against the father were unfounded, this would not necessarily mean that a change in primary residence for the child was justified. The mother’s position was broadly that the child should continue to live with her, and spend gradually increasing time with the father, and that there should be shared parental responsibility.
At the conclusion of final submissions I made orders by the consent of the parties, together with some orders opposed by the mother, allowing the father to commence gradually increasing unsupervised time with the child, and for the mother to commence a program of psychiatric treatment.[2] On the basis that I would be unlikely to make final orders until December 2019 or early January 2020, the matter was adjourned and listed before me for mention on 2 December 2019 to ascertain whether the mother had commenced psychiatric treatment, there being some question about whether she would accept the need to do this.
[2] [2019] FamCA 643.
At the mention on 2 December 2019 counsel for the mother tendered a letter from the mother’s newly consulted treating psychiatrist attesting to the fact that she had commenced a course of treatment with him. It will be necessary to return to the subject of the mother’s treatment and whether there has been due compliance with my orders of 5 September 2019.
Also before the Court at the mention on 2 December 2019 was a report received by the Court on 27 November 2019 from the Victorian Department of Health and Human Services (“the Department”) in response to an order made by Johns J on 2 May 2019 pursuant to s 69ZW of the Family Law Act 1975 (“the Act”). The parties made submissions about this report, and it will be necessary to return to this subject also.
At the conclusion of the mention on 2 December 2019 the positions of the father and the mother remained broadly as they had been articulated on 5 September 2019 – essentially with the father seeking to have the child live with him, and the mother seeking to have the child live with her. Notably however, and this was confirmed by email from the father’s solicitors to my chambers on 10 December 2019, the father no longer seeks that the mother only have supervised time with the child for an initial period. He now says he would be content for the mother to be unsupervised on all occasions when she was having time with the child.
The Independent Children’s Lawyer (“the ICL”), who was not represented at the mention by her trial counsel, did not express a position in relation to residency having regard to the status of the mother’s treatment. Indeed, she seemed to be unaware of what the competing positions in relation to residency actually were. I requested that she express a position by 5 December 2019.
On 9 December 2019 the ICL filed and served a minute of proposed orders. The orders suggested by the ICL are expressed to be interim orders. They contemplate that the mother and the father have shared parental responsibility, that the child live with the mother until further order and spend time with the father, that the mother’s psychiatrist provide a report to the ICL at least once every three months, and that the matter be otherwise adjourned for review in approximately nine months. Curiously, the ICL’s position is not altogether consistent with the position she adopted and the orders she sought on 5 September 2019, but I will return to this aspect of the matter later in these reasons.
The substantive matters for determination are therefore whether the father or the mother should have sole parental responsibility for the child or whether there should be shared parental responsibility, with whom the child should live and what the spend time arrangements should be for the parent with whom the child does not live, and whether orders in relation to the child’s residency and corresponding orders for time should be made on a final basis, or on an interim basis and reviewed in nine months depending on how the mother’s treatment progresses.
It will be apparent that in circumstances where the mother has made but no longer pursues her claim that the father represents an unacceptable risk to the child, these matters for determination raise the following questions. First, whether there is an unacceptable risk of emotional or psychological harm to the child if she continues to live with the mother by reason of the mother’s allegations against the father and the possibility that allegations of this kind might continue. Secondly, whether the mother will promote the child’s relationship with the father if she continues to live with the mother. Thirdly, how any change in living arrangements would impact the child. And fourthly, if the mother does present an unacceptable risk to the child, how that risk could be ameliorated if the child’s residency does change to the father.
A further matter which I consider it is desirable to determine is the outcome of the mother’s no longer pursued but not actually withdrawn allegations that the father has engaged in serious sexual misconduct with the child. In other words, should there be a positive finding that the father has not sexually abused the child?
For the reasons which follow there will be a positive finding that the father has not sexually abused the child or otherwise engaged in acts of sexual misconduct with the child. There will be final orders that the father have sole parental responsibility for the child, that the child live with the father, and that she attend the local school proximate to his residence. There will be interim orders in relation to the time which the mother shall spend with the child in the next 12 months or so, and for the mother’s continuing treatment. The matter will be listed for mention in late 2020 on the question of the time the mother shall have with the child on a final basis, on the assumption that the mother’s treatment program continues, and that there is no occasion to vary the orders to provide for the child to have only supervised time with the mother.
Background
The parties in this case are parents to one child, X (“the child”) born in 2014. The child is currently five years old.
The applicant father is aged 48 and has been living in Suburb J in a property owned by him and in which the parties lived during the relationship. The father intends to sell or has sold the property in Suburb J to pay out certain debts and move into a two bedroom home on the property of the paternal grandmother and her husband in Suburb B. The father is employed on a full time basis within the public service. The father is of Aboriginal decent. He has not re-partnered.
The respondent mother is also aged 48 and lives with the child in a rental property in Suburb K. The mother is employed on a part time basis with the public service, however at the time of final hearing she was on unpaid leave. The mother has not re-partnered. The mother has a son, who has nearly finished secondary school, from a previous relationship. He lives with her and the child. It is an approximately 40 kilometre drive from Suburb K to Suburb B.
The mother and father first met in 2010 when they were both working in a Government department. While there is some dispute as to when the parties commenced a relationship, it is common ground that they commenced cohabitation in or around November 2013, following the mother falling pregnant in August of that year when the mother moved into the father’s home in Suburb J. It is common ground that the parties separated on a final basis on 30 April 2015, when the mother and the child moved out of the Suburb J property. The parties never married.
Since final separation the mother has been the child’s primary caregiver, with the father having sporadic time, largely under supervision of the mother, or, following the commencement of proceedings, under the supervision of the paternal grandmother and step-grandfather, or other providers.
The father says that in or around November 2016 the mother began limiting his time with the child following his refusal to allow the mother and the child to move back into his home in Suburb J. He says he had a concern that the parties would continue to argue, and that this would create a harmful environment for the children, and so for that reason he did not agree to the mother and the child moving back into his house. For her part, the mother says this was following an incident where she witnessed the father sexually abusing the child in the bathtub. The mother says this incident occurred in July 2016.
On 18 January 2017 the mother applied for an Interim Intervention Order against the father, to which the father consented without admission on 16 March 2017. The mother did not respond to requests made by the father’s solicitors in April and May 2017 seeking to resume his time with the child, precipitating the father commencing proceedings in the Federal Circuit Court on 11 July 2017.
At the time of the final hearing in August and September 2019, the child was living with the mother and spending supervised time with the father in accordance with orders made by consent on 26 April 2018, and amended on 5 September 2018, each Sunday from 9.45 am to 5.15 pm. At the time of publication of these reasons the father’s time with the child had moved to unsupervised overnight time in accordance with the orders made on 5 September 2019, with the child spending each alternate weekend from Friday until Monday and each other Wednesday from 4.30 pm until 7.30 pm in the care of the father.
The child has been attending a kindergarten three days per week and is to commence primary school this year.
History of Proceedings
On 11 July 2017 the father commenced proceedings in the Federal Circuit Court seeking final and interim parenting orders, including amongst other things that the parties have equal shared parental responsibility, that the child live with the mother, and that the father have time with the child on a fortnightly basis each alternative weekend from Friday until Monday, and from Tuesday until Thursday in the other week.
On 22 August 2017 the mother filed a Response to Initiating Application seeking sole parental responsibility on a final basis, that the child live with her and otherwise reserving her position with respect to the father’s time with the child.
On 23 August 2017 orders were made for a family report, psychiatric assessments, the appointment of an ICL, and for the father to spend time with the child each Sunday for three hours, supervised by the paternal grandmother or N Service.
On 19 December 2017 further interim orders were made extending the father’s time with the child to four hours each Sunday, with either the paternal grandmother or step-grandfather to be in substantial attendance.
On 23 March 2018 the mother filed an Amended Response to Initiating Application seeking, on a final and interim basis, amongst other things, sole parental responsibility and that the child live with her, spousal maintenance and a property settlement as determined by the Court, and a superannuation splitting order in respect of the father’s superannuation. She also sought that the father pay her $60,000 by way of part property settlement. She continued to reserve her position with respect to the father’s time with the child.
On 26 April 2018 further interim orders were made with the consent of the parties extending the father’s time with the child to each Sunday from 9.15 am to 5.15 pm with either of the paternal grandmother or step-grandfather to be in substantial attendance. Procedural orders were also made transferring the matter from the Federal Circuit Court to this Court, with a recommendation that the matter be given consideration for placement in the Magellan List.
On 23 July 2018 the father filed a Contravention Application and an Application in a Case seeking a change in residence and that he be awarded sole parental responsibility. This was in circumstances where the mother had unilaterally suspended time between the father and the child following disclosures allegedly made by the child in the presence of the mother.
On 31 July 2018 the mother’s solicitors filed a Notice of Ceasing to Act, nominating the mother’s residential address as the new address for service.
On 4 September 2018 the mother filed a Response to the Application in a Case seeking sole parental responsibility. The mother also filed a supporting affidavit whereby she particularised the allegations she was making against the father and the alleged disclosures made by the child.
On 5 September 2018 interim orders were made by consent varying the father’s time with the child and providing for time to occur each Sunday from 9.45 am to 5.15 pm to be supervised by paternal grandmother or step-grandfather at all times, with the Court noting that the father denied the need for supervision. The orders also gave leave to the father to withdraw both his Contravention Application and Application in a Case filed 23 July 2018.
On 4 April 2019 the mother filed a Notice of Address for Service nominating a new firm of solicitors as her address for service.
On 2 May 2019 trial directions were made setting the matter down for final hearing for a period of five days commencing on 26 August 2019.
On 25 June 2019 the mother’s new solicitor filed a Notice of Ceasing to Act, again nominating the mother’s residential address as the address for service.
As has been indicated, on 3 July 2019 the mother sought to have the trial adjourned. This application was made on the basis that she was without legal representation and could not file her trial material. On 10 July 2019 I made orders enlarging the mother’s time to comply with the trial directions and dismissing her application for an adjournment.
On 18 July 2019 the mother again filed a Notice of Address for Service nominating a new firm of solicitors as her address for service.
At the conclusion of the trial on 5 September 2019, the mother having indicated to the Court that she no longer pursued a finding that the father constituted an unacceptable risk, I made the following orders by consent:
1. All previous interim orders are hereby discharged.
2.The Mother shall forthwith make contact with Dr C, Psychiatrist, and follow all directions of Dr C to arrange an expeditious referral to a psychiatrist (“the treating psychiatrist”) nominated by Dr C for the purposes of undergoing treatment to address her psychiatric issues as diagnosed by Dr C in his report attached to his Affidavit sworn 12 December 2017 and filed herein.
3.The Mother shall attend all appointments as directed and follow all other directions of the treating psychiatrist in relation her treatment including but not limited to the taking of medication.
4.The Mother shall be responsible for all payments due to Dr C or the treating psychiatrist pursuant to these orders.
5.The Mother shall forthwith advise the Father and the Independent Children’s Lawyer of the name and contact details of the treating psychiatrist once she has received a nomination and a referral.
6.All parties shall be at liberty to provide to the treating psychiatrist, the Department of Health and Human Services and SOCIT copies of the Affidavit of Dr C sworn 12 December 2017 and the reports of the family consultant Mr H dated 10 April 2018 and 12 August 2019, along with any judgments and orders made herein.
7.The Mother shall provide her referring general medical practitioner with copies of the documents referred to in paragraph 6 hereof.
8.The Mother shall authorise the Independent Children’s Lawyer to liaise with and receive feedback from the treating psychiatrist from time to time in relation to the Mother’s attendance for appointments and compliance with treatment.
9.The proceedings be adjourned to 2 December 2019 at 10:00am for mention before the Honourable Justice McEvoy and for this purpose the Mother is to obtain a report from her treating psychiatrist (if any) as to the progress of her treatment and her attendance as directed.
10.Until further order, the child … born … 2014 live with the Mother.
11.[The child] spend time with the Father as follows:
(a) commencing 5 October 2019:
(i)each Wednesday from 4:30pm until 7:30pm;
(ii)each alternate weekend from 4:30pm Friday until 5:00pm Sunday;
(b)commencing 2 November 2019:
(i)each Wednesday from 4:30pm until 7:30pm;
(ii)each alternate weekend from 4:30pm Friday until 8:15am Monday;
(c)commencing 30 November 2019, each alternate weekend from 4:30pm Friday until 8:15am Tuesday;
(d)from 4:30pm Friday 28 December until 5:00pm 1 January 2020.
12.[The child] spend further time with the Father from 5:00pm Christmas Eve until 3:00pm Christmas Day.
13.Changeover shall occur at D Centre on days [the child] attends childcare and otherwise at KFC Suburb E, Victoria.
14.The Mother shall forthwith facilitate the Father gaining access to the D Centre Mobile App.
15.The Father be permitted to attend D Centre to discuss issues relating to [the child] with the staff and to attend all events at D Centre that parents are normally invited to attend.
16.The Mother be restrained by injunction from taking [the child] to any Counsellor, Psychologist or other such medical professional for the purpose of Counselling without the written consent of the Father.
Orders in the following terms were also made, but not with the mother’s consent:
17.[The child] spend time with the Father commencing 7 September 2019 as follows:
(a)each Wednesday from 4:30pm until 7:30pm (save that on 2 October 2019 time shall be extended and conclude at 8.15am Thursday to enable [the child] to participate in a cultural event) with changeover to occur at KFC Suburb F, Victoria;
(b)each week from 10:00am Saturday until 10:00am Sunday (for a period of 2 weeks) and thereafter concluding 5:00pm Sunday.
18.[The child] spend further time with the Father on a week about basis in January 2020 being from 10:00am 8 January 2020 until 10:00am 15 January 2020 and from 10:00am 22 January 2020 until the commencement of school on or about 29 January 2020.
19.The parties shall communicate in relation to issues involving [the child] by SMS message, including providing details of [the child’s] routine, medical issues and diet.
Proposals of the parties
As has been mentioned, on 10 December 2019 the father proposed a regime whereby the orders made on 5 September 2019 (set out above) remain in full force and effect until the commencement of term 1 of school for the child. Substantively however, the father proposes that he have sole parental responsibility for the child and that, save for the event of an emergency, prior to making any long term decision concerning the child he shall advise the mother of his intended decisions, seek her response, consider her response, and advise her as soon as reasonably practicable of his ultimate decision. The father proposes that the child live with him, and that she spend every other weekend with the mother in a non-supervised environment and each Wednesday evening during term time from 4.30 pm until 7.30 pm. He proposes that the child have half of each of the school term holidays, two weeks in the long summer holidays, and special days with the mother as appropriate. The father proposes an order that the mother forthwith attend upon a psychiatrist as recommended by Dr C for the purpose of undertaking ongoing psychiatric treatment (although of course this has already been ordered and the mother has apparently commenced a course of psychiatric treatment). The father also proposes an order permitting him to enrol the child at the local school in Suburb B where he is shortly to commence living, together with certain ancillary orders.
For her part, the mother now proposes a regime which involves her and the father having shared parental responsibility for the child, the child living with the mother, and the child attending a local Catholic school proximate to the mother’s residence. The mother also proposes that the child spend time with the father in the days before Christmas 2019 and overnight on Christmas eve, overnight on New Year’s eve, two periods of one week in January 2020, every other weekend during term in 2020, Wednesday nights from 4.30 pm to 7.30 pm, half of term holidays, on a week about basis over the summer holidays from 2021 onwards, and standard arrangements for special days. The mother’s proposed orders also contemplate that she would continue to attend upon her treating psychiatrist and follow his lawful directions for treatment.
The ICL’s position, at least as of 9 December 2019, is that the father and mother have shared parental responsibility for the child, until further order the child live with the mother, and that until further order the child spend time and communicate with the father for one week during January 2020, on alternate weekends during term time in 2020, each Wednesday during term time from after school until 7.30 pm, for half of each school term holidays, and at specific times on special days.
The ICL also proposes orders that the mother continue to attend upon her treating psychiatrist and follow all other lawful directions of her treating psychiatrist in relation to her treatments, that she authorise her treating psychiatrist to provide a report to the ICL at least every three months briefly outlining her attendance at appointments, her compliance with treatment and any other relevant matters, and that she meet all costs associated with that report. In the event that it is considered appropriate for the child to attend any health professional for the purposes of counselling, the ICL proposes that any such counselling or treatment not occur without the prior written consent of both parents. The ICL proposes that the matter otherwise be adjourned for review in approximately nine months.
As I have said, the ICL’s proposed orders are not altogether consistent with the position she adopted at the conclusion of the trial. At the conclusion of the trial her position was that orders in the terms made on 5 September 2019 should be made. The ICL’s view at that time was that unless the mother could expeditiously access and continue with psychiatric treatment, and it could be shown to be effective, there was a real risk to the child in remaining in the care of the mother. The ICL considered that the child should have considerably more time with the father over the 2019/2020 holidays than she now proposes, and she submitted that she would only be prepared to support an arrangement where the child remained living with the mother if the father had substantial and significant time with the child and the Court could provide a structure to ensure that the mother commenced seeing a psychiatrist and that she made progress which could be monitored over many months.
For reasons which are not at all clear, and indeed which might be thought not to reflect the evidence before the Court on 2 December 2019, the ICL appears to have formed the view that the mother is responding well to psychiatric intervention and that the child should continue to live with her, pending a period of some nine months, at which time there should be a further review for the purposes of determining whether the child should remain living with the mother. It would seem that the ICL has softened her position significantly with respect to the mother and the need for the mother to obtain appropriate psychiatric assistance, and the time that the child should spend with the mother.
It would have been of considerable assistance to the Court if, in response to the invitation extended on 2 December 2019, the ICL had not only provided a revised set of orders that she sought, but also some explanation of the position she now adopts and the basis upon which the position articulated to the Court on her behalf in written submissions tendered on 5 September 2019 has changed. As will be apparent, and for reasons I will explain, I have not acceded to the December 2019 proposals of the ICL in the circumstances of this case.
Material relied upon
The father relied upon the following documents:
a)Amended Application filed 21 May 2019;
b)Financial Statement filed 21 May 2019;
c)Affidavit of Mr Pullman filed 21 May 2019;
d)Affidavit (Reply) of Mr Pullman filed 20 August 2019;
e)Affidavit of Ms M filed 21 May 2019;
f)Affidavit of Mr M filed 21 May 2019;
g)Affidavit of Dr H filed 21 August 2019 annexing the report dated 12 August 2019;
h)Report of Dr H dated 10 April 2018
i)Affidavit of Dr C filed 13 December 2017 annexing the report dated 30 November 2017;
j)Affidavit of Ms N filed 19 August 2019 annexing the report dated 13 November 2017; and
k)various exhibits tendered at the trial comprising text messages passing between the father and the mother, the recording of a voicemail message, correspondence between the parties’ solicitors, a handwritten whiteboard note, a series of emails received by the father from the mother and a Victoria Police subpoenaed file.
The mother relied upon the following documents:
a)Further Amended Response to Initiating Application filed 7 August 2019;
b)Trial Affidavit of Ms Garafolo filed 7 August 2019;
c)Amended Financial Statement filed 7 August 2019;
d)Affidavit of Dr C filed 13 December 2017 annexing the report dated 30 November 2017;
e)Affidavit of Dr H filed 21 August 2019 annexing the report dated 12 August 2019;
f)Report of Dr H dated 10 April 2018.
The mother initially sought to rely on the affidavit of Ms O filed 7 August 2019. Ms O is a friend of the mother, and the child’s Godmother. However Ms O’s affidavit was the subject of several objections by the father, largely on the basis of hearsay and relevance. I considered that significant parts of the affidavit were inadmissible or of questionable probative value, and I upheld each of the father’s objections. On the fourth day of the trial counsel for the mother indicated that the mother did not rely further on Ms O’s affidavit, and he elected not to call Ms O. Insofar as there remained material in Ms O’s affidavit about which counsel for the father did not seek to cross examine, I have had regard to this material in considering the issues to be determined. On the whole Ms O’s evidence has not been significant in the conclusions I have reached.
The mother also initially sought to rely on a report of a Mr P, dated 10 June 2019. Mr P purports to be a certified international cyber forensic investigator, cyber stalking expert, and mobile forensics examiner. However on the first day of the trial the report was the subject of an objection and counsel for the mother accepted that the report had no probative value and did not rely upon it.
The ICL also relied upon the report of Dr H dated 12 August 2019, and the report of Dr C dated 30 November 2017. In addition, she relied upon the mother’s statement to the police dated 9 May 2017 and the Department’s first visit case note conducted on 11 January 2018.
The Statutory Regime
Part VII of the Act is concerned with children. It sets out the objects, principles and matters that must be considered when determining what parenting order is proper. In proceedings for a parenting order, the Court may, subject to s 61DA (the presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VIII, make such parenting orders as it thinks proper: s 65D(1).
A “parenting order” is defined in s 64B of the Act and may deal with matters including with whom a child is to live, the time a child is to spend with another person, and the allocation of parental responsibility for a child. The paramount consideration when making a parenting order is the best interests of the child or children the subject of the proceedings: s 60CA of the Act.
Section 60B(1) of the Act sets out the objects of Part VII, which are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s 60B(2) of the Act. They are that, unless it would be contrary to the best interests of a child:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC(2) and (3) of the Act set out the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. Section 60CC(2)(a) provides that a primary consideration will be the benefit to the child of having a meaningful relationship with both of the child’s parents. However the effect of s 60CC(2A) is that the Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Family violence is defined in s 4AB(1) as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. Examples of this, as s 4AB(2) sets out, include preventing a family member from making or keeping connections with his or her family, friends, or culture. Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order.
When determining what is in the best interests of the child the relevance of the primary and secondary considerations and the weight to be given to them will depend upon the particular circumstances of each case: Poisat & Poisat (2014) FLC 93-597 at [34]. As to the manner in which the Court is to take those considerations into account, in Donnell & Dovey (2010) FLC 93-428 the Full Court said that the considerations may be seen as “…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion” (at [103]). In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed at [76] – [77] as follows:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Original emphasis)
As the High Court observed in U v U (2002) 211 CLR 238, the Court’s power in making a parenting order is to make orders it considers to be in a child’s best interests and it is not bound by the parties’ proposals (see Gummow and Callinan JJ at [80], with whom Gleeson CJ at [1], McHugh J at [44], and Hayne J at [169]-[171] agreed).
Subject to the Court making an order changing the statutory conferral of joint parental responsibility, s 61C of the Act provides that each of the parents of a child who is not 18 has parental responsibility for the child. There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child (or other relevant child) or family violence, or where the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility: s 61DA of the Act.
When that presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with both parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practicable for the child to spend “substantial and significant time” with each of the parents (s 65DAA(2)).
In cases involving allegations of abuse or family violence, a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the Court should not be produced by inexact proofs, indefinite testimony or indirect inferences.[3] Where it is not possible positively to reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[4]
[3] M & M (1988) 166 CLR 69, 76-77 (Mason CJ, Brennan, Dawson, Toohey and Gaundron JJ) citing Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
[4]M & M, 77; N and S and the Separate Representative (1996) FLC 92-655.
The evidence
Although in one sense the mother’s decision not to pursue a finding that the father constituted an unacceptable risk to the child simplified the case, it does not obviate the need to consider the evidence in relation to the allegations that the mother made, and the basis upon which they were made. The making of the allegations, and the circumstances in which they were made and then elaborated by the mother in her viva voce evidence, particularly given that they have not been abandoned, are all matters which are relevant to considering whether there is an unacceptable risk of emotional or psychological harm to the child if she continues to live with the mother. These matters are also relevant to the question of whether the mother might be expected to promote the child’s relationship with the father were she to continue to live with the mother. Obviously enough, the father’s evidence is also of critical importance in considering whether the best interests of the child would be secured by the father having sole parental responsibility and having the child live with him.
It is necessary therefore to consider the evidence of both the father and the mother and other relevant witnesses and then, in this context, the evidence of the experts and the further material which was before the Court at the mention on 2 December 2019.
Evidence adduced by the father
The father’s trial affidavit sworn and filed on 21 May 2019 describes the background of the parties’ relationship and the circumstances of their early life with the child. The father states that the mother moved out of the Suburb J property with the child on 30 April 2015, without notice to him, and that he was not able to spend time with the child between May and July 2015. He says that in or about July 2015 the mother allowed him to see the child on a number of occasions in a park before permitting him to visit the child at the mother’s new residence. The father says that he spent an increasing amount of time visiting the child between September 2015 and October 2016, and that he had significant time with the child, including overnight time, through until November 2016.
The father states that in November 2016 the mother suggested that she and the child move back into the Suburb J property, although on the basis that the mother would rent the spare room. The father was reluctant to enter into this arrangement and he says that in the face of his reluctance the mother began limiting his time with the child, including by unilaterally changing the days on which he was scheduled to spend time with her. According to the father, matters continued on this irregular basis in the period November/December 2016 and into 2017.
The father deposes to the service on him of an intervention order in late January 2017 which the mother had taken out on 18 January 2017. The intervention order application contained allegations made by the mother that the father had, over the past six months or so, abused the mother emotionally and psychologically by intimidation and manipulation, that he had stalked her and kept her under surveillance, that he had cast aspersions upon her good character at home and at her place of work, that he had taken financial advantage of her in the form of coercing her into taking on further debt to support him and his lifestyle, that he had attempted to have her dismissed from her place of employment, that he had driven in an unknown car slowly near her home, that he had installed a listening device and camera in her home, that he had hacked into her laptop with secret spying software installed on her mobile telephone without her knowledge, that he had loaded a tracker device onto her telephone which detected her movements, and that he raped her on two occasions in November 2016.
The father denies all of the allegations made by the mother in her intervention order application, but consented to the intervention order on 16 March 2017 with no admissions as to the allegations. He says that he agreed to the intervention order because the mother was not allowing him to see the child at that stage in any event. The father also says that the mother instructed the child’s kindergarten to deny him access to the kindergarten mobile phone app which enabled him to follow the child’s progress at kindergarten, and that his access to the app ceased on 31 January 2017.
The father deposes that his solicitors wrote to the mother on three occasions in April and May 2017 seeking to resume his time with the child, but that the mother did not respond to these letters and so in consequence he commenced proceedings in the Federal Circuit Court on 11 July 2017.
The father observes that in her responding documents in the Federal Circuit Court the mother alleged (for the first time) that he had sexually abused the child in the bath in July 2016. In paragraph 20 of his trial affidavit the father explains the mother’s allegations as follows:
[The mother] alleged that whilst I was in the bath with [the child], that I masturbated and that I grabbed [the child’s] right hand and pulled it towards my penis. This incident as described by [the mother] simply did not occur. I admit that I would regularly bath [the child], and occasionally this meant that I would be seated in the bath with her. [The mother] was aware of this and did not object to this. In fact it occurred in her presence. [The mother] alleged that the incident occurred in July 2016. However I understand that she reported the alleged incident to the police six months later on 4 January 2017. I was interviewed by the police in July 2017. No charges have been laid against me and I understand that the police do not intend to investigate further. Further, I say that between the date of the alleged incident being July 2016 and the end of 2016, I continued to bath [the child] with [the mother’s] consent. I also was left to look after the child unsupervised on many occasions. This included when [the mother] requested that I take [the child] to the Zoo (unsupervised) on Father’s day 2016 and when I picked her up on Christmas day 2016. I say that if the incident as described by [the mother] in fact occurred, she would not have allowed me to continue having unsupervised contact with [the child] for the next 6 months. Further, the incident would have been reported to the police immediately if it had in fact occurred.
The father deposes that his Initiating Application was listed for hearing in the Federal Circuit Court on 23 August 2017, by which stage he had not seen the child for eight months. Various procedural orders were made on that day. There were also orders that the father could commence spending time with the child supervised by his mother for a period of 3 hours each Sunday in week one, and by a professional supervisor at N Service in week two, alternating thereafter. The father says that his contact with child following the making of these orders proceeded relatively smoothly and that he was able to re-establish his relationship with the child in the face of the eight month period of no contact. He refers in this regard to the report of N Service dated 13 November 2017, to which further reference will be made.
The father states that on 19 December 2017 the matter returned to the Federal Circuit Court for its second hearing. On that day orders were made by consent for him to spend time with the child for four hours each Sunday with either his mother or her partner, his stepfather, to be in substantial attendance. The father says that his mother and his stepfather were present at all times during his contact with the child with a view to preventing any further allegations being made by the mother against him. The father says that following the December 2017 hearing he and the child spent approximately four hours together each week, participating in various activities.
On 26 April 2018 orders were made in the Federal Circuit Court extending the father’s time with the child to full days each Sunday, being from 9.45 am to 5.15 pm with either his mother or his stepfather in substantial attendance.
The father refers to various occasions that he spent supervised time with the child in the period April to June 2018 until, on 23 June 2018, a contact visit did not proceed. The father says that the mother cancelled the visit alleging that the child was unwell, and that this was the second occasion where the mother had said the child was unwell on days when the father had pre-arranged a birthday party for the child.
On 1 July 2018 the father and his mother took the child to the Zoo and then back to his home. The father says that the mother has alleged that he took the child to the male toilets at the Zoo, an allegation which he denies. He says that he asked his mother to take the child to the female toilets at the Zoo, which she did.
On 6 July 2018 the father’s solicitor received a letter from the mother’s solicitor alleging that the child had said to her “I have dada’s sperm in me”. The father says that the mother suspended his time as a result of this complaint, despite his vehement denials that he had ever made any such comment to the child. The father says that he understands that the mother reported this to the Department, but that he has not been contacted by the Department in relation to the matter, and that he made contact with the Department himself to expedite any investigation, but that the matter has not been followed up with him.
The father attended further changeovers in July 2018, but the mother did not attend and he was denied time with the child. As a result of this unilateral suspension of his time the father filed a Contravention Application. By the time of this application he had not had time with the child from 1 July 2018 until 9 September 2018, including on Father’s Day 2018. The father’s Contravention Application, together with an Application in a Case seeking a change in residence, was filed on 23 July 2018 and listed for hearing on 5 September 2018.
In response to this Contravention Application the mother made a further allegation against the father. She alleged that on one occasion he had masturbated on the couch in the presence of the child. The father’s trial affidavit is in the following terms in relation to this matter:
She [the mother] alleged that [the child] had reported to her that she had seen my “front bottom”, that I was touching it, that it “went boom up in the air and landed on the couch” and that “it was white”. I vehemently deny that I did any of those things alleged. I am disgusted in the continual allegations that I am a sexual predator or that I would behave in such a way in the presence of my little girl.
The father says that these allegations were made by the mother at a time when his mother was ordered to be in substantial attendance but in fact supervised and was present at all times during his contact with the child. He explains that although the orders provided that his mother was to be in substantial attendance only, his mother has supervised all visits and was in eyeshot and earshot at all times during his time with the child. The father says that both he and his mother had ensured that this was the case as they recognised the importance of protecting themselves against the accusations and allegations made by the mother.
At the contravention hearing on 5 September 2018 orders were made by consent for the father to continue spending time with the child in accordance with the orders of 26 April 2018, save that the time was to be at all times supervised by either his mother or stepfather (rather than substantial attendance as previously ordered). The father says that he consented to this order as his mother was present at all times during contact with the child anyway.
The father continues to hold significant concerns in relation to the mother’s mental health. He says that during the relationship the mother exhibited extremely paranoid and unusual behaviour. These behaviours included:
a)ripping the internet cable from the telephone socket at night time as she believed the electromagnetic fields would affect her;
b)on one occasion sleeping with alfoil underneath her beanie as she thought that the electromagnetic fields from the internet would affect her;
c)requesting the father to check the back of her head for what she believed to be a chip that her ex-partner had implanted in her head;
d)insisting that the father was having an affair with another woman, despite his repeated denials of the same;
e)accusing the father of frequenting a “gay sex room”;
f)believing that the father had accessed her SMS messages and was able to manipulate the messages;
g)rushing the child to the emergency department at the Q Hospital in January 2015 after discovering that the child had a pubic hair growing, and insisting that immediate blood tests be performed;
h)disclosing that the child was allergic to nuts and tomatoes, which was not the case;
i)having a number of traffic accidents and incidents including failing to stop at a T-intersection and being hit by another car, being arrested for 42 traffic infringements, and admitting to almost falling asleep on the freeway on four occasions;
j)informing the father that when she was younger she slept in her mother’s bed until she was 16 years of age and always slept with her hand on her vagina;
k)alleging that an ex-partner of hers had hacked into her Centrelink records while she was at the counter and that the hacker was able to go into the system remotely while she was at the counter in order to change the records;
l)informing the father that “you will need counselling for life after I have finished with you”;
m)randomly texting the father in the period after November 2016 requesting that he stop stalking her in circumstances where he had not stalked her;
n)telling [the child], who repeated the allegation, that “dada’s house [is] dirty”;
o)continually testing water for contaminants;
p)sending the father links to pornographic websites, including one which had the theme “daddy and daughter”; and
q)continuing to have the child sleep in the mother’s bedroom, despite the child having her own room.
The father also recounts a series of occasions since separation on which the mother has refused to let the child see him, refused reasonable requests for make-up time, refused to allow the child to attend NAIDOC week (which is extremely important to him given his Aboriginal cultural heritage), instructing the child not to use the toilet at the father’s home and not to eat at the father’s home.
The father is of the firm belief that unless the child is placed in his primary care she will not be permitted by her mother to continue to have a relationship with him. He apprehends that the mother will continue to make allegations of sexual abuse against him. He considers that the child is at risk of emotional and psychological harm if she remains living with her mother given the concerns that he has in relation to the mother’s mental health and the mother’s general conduct. The father has no confidence that the mother can promote a positive relationship between the child and him in circumstances where she has either fabricated the allegations of sexual abuse, or believes them to be true.
The father says that he plans to sell his home in Suburb J to pay out all of his debts, which are significant. His mother and his stepfather have offered him the opportunity to live in a two bedroom house on their property in Suburb B. This will mean that if the child is placed in his full time care, his parents, and his brother and his brother’s wife can assist in looking after the child should assistance be required. The child has a close relationship with her paternal grandmother and, the father says, would benefit from her being significantly involved in her life. The father proposes that the child be enrolled in and attend the Suburb B Primary School commencing 2020, which is within five minutes of the mother’s home in Suburb B where he will be living. The father says that not only does the school have the benefit of being in close proximity to his intended new residence, it has approximately 215 students with above average NAPLAN results and includes an education program that recognises student self-esteem and confidence as being central to positive learning outcomes.
The father says that he is involved with an aboriginal organisation, and that he has previously held the position as secretary of the board of directors of that organisation. He says that his mother is a recognised elder, and that if the child lives with him then he would ensure that she remains connected to her Aboriginal heritage.
The father has also completed a Parenting After Separation Program, and has conducted research into parenting and child behaviour to complement his Bachelor degree.
The father’s position as expressed in his trial affidavit was that if the Court were to order that the child live with him then in the short term it would be appropriate for the mother’s time with the child to be supervised by a professional supervisor. As has been observed, the father has now moved away from insisting that the child’s time with the mother, at least initially, should be on a supervised basis. The father said in his trial affidavit that this would be the only way in which the child would be protected from the mother’s ongoing and unrelenting allegations. Although he has no doubt that the mother loves the child and that the child’s day to day needs are met by the mother, the father says that he does not believe that the mother will ever allow the child and him to have a meaningful relationship free from allegations and counter-allegations. He says that it is his firm belief that the only way in which the child will have a meaningful relationship with both parents is if she lives primarily with him.
The father was extensively cross examined by counsel for the mother and counsel for the ICL about certain relatively minor allegations of family violence, his alleged sexual misconduct involving the child, his view that the child needed to have a change of residence, his personal habits and cleanliness, and a variety of other matters of lesser significance. He accepted that there were certain occasions on which he might have engaged in what could be described as family violence, albeit that they were at the lower end of the spectrum. Most relevantly, however, he emphatically denied all of the allegations of sexual impropriety which had been directed at him by the mother and gave cogent answers to questions directed to his concerns about the mother’s mental stability. It is noteworthy that the father expressed a desire for the child to continue to have a relationship with her mother, and to continue to have the benefit of her mother playing a role in her life. He says that he regards this as the child’s right.
The father also relies on the affidavit of his mother, Ms M. Ms M is a registered foster carer with R Group and holds a Working with Children Check. She confirms and agrees with the contents of the father’s trial affidavit insofar as they relate to the activities that have occurred during periods of supervised time with her. She states that she has been in full attendance at all contact visits and for most changeovers and that her husband, Mr M, has also attended changeovers and been present for most contact visits.
Ms M has kept a log book/record of what occurs during contact visits, and she deposes to various aspects of this. She makes certain observations about the child’s positive reaction to her time with the father and with her, and about incidents which have occurred in time that the father and Ms M have spent with the child. Ms M denies, in particular, ever having seen the father masturbate in the presence of the child, and expresses her disgust that these allegations continue to be made by the mother.
Ms M confirms that she and her husband have offered the father the opportunity to live in a two bedroom dwelling currently being constructed on their property in Suburb B. She says that this house is located next to her own home and the father’s brother’s house, and that this will enable the father’s immediate family to assist him to care for the child and will also allow the father to address his precarious financial position. Ms M says that if the child is placed in the father’s full time care she is willing and able to assist the father in looking after the child or helping him drop her off and pick her up from school. Ms M comments that although she would anticipate that any change in residence would be difficult for the child because she is used to living with her mother (as was the position in May 2019 when Ms M made her affidavit and the child was not having overnight time with the father), she is certain that the child will quickly become accustomed to the new arrangements and will thrive in her new environment. It is to be noted that there has been no suggestion that the child is not coping well with overnight time with the father since that was ordered in September 2019.
The father also relies on the affidavit of his stepfather, Mr M. Mr M holds a Working with Children Registration, has trained in male violence awareness, and completed studies in psychology. Mr M has also undertaken specialist training to identify child abuse and ‘grooming’ practices of adult perpetrators. He confirms and agrees with the contents of the father’s affidavit insofar as they relate to the activities that have occurred during the father’s periods of time with the child when he, Mr M, was present. Mr M says that he has been present on many occasions when the father and the child were having time together, and that he has never witnessed any evidence of child abuse, or ‘grooming’ techniques being employed by the father. Mr M says that the child has not exhibited any of the common behaviours of a child who has been abused.
Mr M regards the father as a loving and devoted father, committed to the child’s wellbeing and normal, healthy development. He concurs with the contents of Ms M’s affidavit insofar as it deal with periods of supervised time at which he was present. Mr M denies the allegations that the father could have masturbated in front of the child during contact visits because at all times either he or his wife were within eye shot and earshot of the father and the child.
Mr M says that if the child is placed in the father’s full time care, he is willing and able to assist the father in looking after the child or helping him drop her off and pick her up from school and assist in providing the child with an enriched and supportive environment. Mr M would like to assist the child’s development by enrolling her in Scouts and attending meetings and camps with her to help build her self-confidence and develop her interpersonal and life skills.
The father also relies on an affidavit of Ms N who is the manager and owner of N Family Services. N Family Services has been engaged to supervise the time between the father and the child. Ms N has prepared a report from the supervisor’s notes, which includes a detailed account of the first three periods of supervised time and any significant incidents or conversations relevant in the remaining three periods of supervised time. Without setting out all of Ms N’s observations in detail, it is plain that she does not identify any difficulties with the father. She identifies him as someone the child likes to be with, as someone who plays lovingly and appropriately with the child, and as someone who the child does not want to leave at the conclusion of supervised time.
Ms N observes that, at least for the initial sessions, the mother was consistently late for the period of supervised time, and that the mother made serious allegations about the father to her including about “a bathroom incident” and that “Child Protective Services were brought in”. Ms N notes that the mother told her that there was an intervention order in place, that she was concerned about the child being left alone with the father, that the father “likes both men and women” and that the father “has a history of drug use”.
By way of final summary, Ms N observed as follows:
FINAL SUMM[A]RY
All interaction between the father… and child… has been appropriate, playful and affectionate.
[The father] has always greeted [the child] affectionately.
He has lots of encouragement and praises for [the child], as they engage and play together.
[The father] watches [the child] carefully on and around the equipment, and supports and helps her when needed.
[The father] is able to set boundaries re sharing, saying please, and thank you etc. in a clear and gentle manner.
[The child] always greets her father excitedly and affectionately.
[The child] has loved her time at the play centre and has engaged her father in all her play.
She appears very comfortable and happy with her father.
She will go to her father for comfort if she is upset or hurt.
[The child] has protested and became [sic] upset, on each of the occasion [sic] when is [sic] time to leave the centre and say goodbye to her dad. She cried on the first 4 occasions, but coped a little better the last 2 times.
There were no objections to Ms N’s evidence, and she was not cross examined.
The father affirmed a further affidavit of 20 August 2019 in reply to the trial affidavit of the mother and the affidavit of Ms O, both sworn on 7 August 2019. Much of what is said by the father in this affidavit in response to the mother’s evidence and Ms O’s evidence is of limited relevance. However, it is to be noted that the father vehemently denies the sexual abuse allegations contained in the mother’s trial affidavit. He specifically denies ever masturbating in the presence of the child or having had the child touch his genitals. He specifically denies ever having been inappropriate with the child in the bath and he denies the conversation the mother says occurred at the time she alleged she had observed the father masturbating himself in the bath with the child. The father specifically and vehemently denies that he has ever said to the child that she has his sperm in her and he vehemently denies the allegations the mother has made surrounding what she calls the “Child Sexual Abuse Disclosure made on 3 July 2018”.
The father explicitly denies the allegation made by the mother that he was unsure as to whether he wished to be a part of the child’s life or not, and that on “three occasions” he had said that he did not wish to be a part of the child’s life. He says that he invited the mother to move in with him when she fell pregnant so that they could support and raise the child together.
Insofar as episodes of family violence are alleged by the mother, the father denies most of these. He does admit, however, that on one occasion he punched a hole in the wall because of his frustration at the mother’s continuing allegations against him. He says that this was the only time he lost his temper, and that he regrets doing so. The father specifically denies allegations made by the mother in intervention order proceedings she commenced, including that he had ever said that her son was “not my type, but I would fuck him anyway”, that he had ever tried to rape the mother, that he had ever tried to hack the mother’s telephone, and that he had been an irresponsible father.
Evidence adduced by the mother
The mother’s trial affidavit sworn and filed on 7 August 2019 runs to some 460 paragraphs. It describes, from her perspective, the background of the parties’ relationship and notes that the relationship has irretrievably broken down and that there is no prospect of reconciliation between the father and her. She says that she has tried to facilitate a meaningful relationship between the child and the father however in July 2016 she witnessed the child being sexually abused by the father in the bath. She says that the child has made concerning disclosures to her since that time which have caused her to form the view that the child has been subjected to further sexual abuse by the father.
Although the mother now says that she no longer pursues a finding from the Court that the father constitutes an unacceptable risk to the child, it is important to understand the gravity of allegations that the mother has made and the terms in which she has made them. Her case was conducted on this basis until final submissions. Commencing at paragraph 21 of her trial affidavit the mother describes three incidents which she says involve the sexual abuse of the child by the father. The mother deposes as follows:
SEXUAL ABUSE BY THE FATHER – INCIDENT IN JULY 2016
21.In July 2016 [the father] took [the child] into the bathroom to bathe her.
22.I was in the kitchen and I realised that there was no sound coming from the bathroom. This was unusual as there is often a lot of noise during her baths.
23.I walked past the bathroom and saw that the door was shut and I could not hear anything.
24.I walked into the backroom. The bathroom window looks out onto this room as it used to be a car port that got converted into a room. The window is louvered frosted glass.
25.The bathtub is an old fashioned bathtub with a shower. I could see through the window that the curtain was closed. This is unusual as it should be open whilst [the father] was bathing [the child].
26.I opened the louvers and looked into the bathroom. The bath was to my right and [the father] was sitting in the bathtub. His head was at the end where the window is and I was looking over his left shoulder. I could see his right arm moving.
27.I stood up more so I could see more clearly.
28.I could see [the father] using his right hand to masturbate himself. I could see his hand on his penis.
29.[The father’s] legs were bent as he was sitting like he was relaxed in the bath.
30.[The child] was in the middle of his legs at about the level of his knees. I could see [the father’s] left arm reaching out and grabbing [the child’s] right hand and pulling it towards his penis. Due to the angle of the curtain I could not see all of [the child]. I am not sure if he got her to touch his penis or not.
31.I was in complete and utter shock and pulled away from the window. As I pulled away I heard the water start to drain out of the bathtub. I ran out the back door which slammed shut behind me and then ran back in around to the bathroom door.
32.As I came around [the father] opened the bathroom door. He had put on (sic) his work clothes back on and his hair was wet. He was dripping wet like he did not dry himself properly.
33.[The child] ran past me in a towel to the bedroom.
34.I told him, “Don’t you ever dare to get in the bath with her again”.
35.[The father] stated, “I had it tucked in”. I told [the father], “Bullshit”. And he just looked to the ground.
36.I telephoned the Department of Child Protection Services to report what I had witnessed in the bathtub with the Father and [the child]. The Child Protection Services insisted that I needed independent witnesses. I was informed that I could report it to the Police but that it was unlikely that the Police would take any action without independent evidence.
37.As I did not have independent proof that the incident occurred, I did not report the incident to the Police based on what Child Protection Services had informed me.
38.After this bathtub incident, I did not leave [the father] unsupervised with [the child].
39.I maintain that at all times after this incident I would supervise [the father’s] time with [the child].
DISCLOSURES MADE BY THE CHILD
Child Sexual Abuse Disclosure made on 1 July 2018
40.On 1 July 2018 I drove [the child] to Suburb T for changeover.
41.Approximately 5 minutes prior to arriving at our destination, I stated to [the child], “only 5 more minutes until we’re there”.
42.[The child] was silent for a few seconds and then replied, “I have Dada’s sperm in me”.
43.I was completely shocked by what [the child] said and asked her words to the effect of, “who said that to you”.
44.[The child] replied, “Dada” which is the term she uses to refer to her father, [the father].
45.I was completely shocked by her disclosure.
Child Sexual Abuse Disclosure made on 3 July 2018
46. On 3 July 2018 I was getting [the child] [ready] for bed and asked her why she told me that she had “Dada’s” sperm in her.
47.I was very concerned that [the child] did not want to tell me why [the father] said this to her so I told her that mummy loves her and that she could tell me anything, especially if she was uncomfortable. I told [the child] that I would not be upset with her.
48.I also explained to her that there are good secrets (like birthday surprises) and also bad secrets such as things that made you feel uncomfortable or do not make you feel good. I told [the child] that these secrets should be shared.
49.After this conversation, when I was changing [the child] in her pyjamas, she said to me words to the effect of, “I don’t have fluff on my front bottom but Dada has fluff”.
50.I was shocked by what she said. [The child’s] demeanour then shared (sic) and she said to me quietly, “I was scared with the bottom learning”. When I asked [the child] was (sic) “bottom learning” was she said she couldn’t tell me because it was a secret.
51.[The child] eventually disclosed to me that “Dada showed me his front bottom” and that “Dada was touching it”. [The child] then said that “it went boom up in the air and landed on the couch”.
52.When I asked [the child] what was on the couch she said to me “it was white”.
53.I was extremely confused and concerned as to what [the child] disclosed to me. When I asked here (sic) where [Ms M] and [Mr M] (the paternal grandparents) were during this time [the child] stated “I don’t know”.
54.I believe that [the child] was frightened to make the above disclosure to me.
55.I comforted her and told her that I was not angry with her.
56.[The child] told me she wanted to go to sleep. She did not ask for a bedtime story as we normally read every night.
57.I pulled the blankets up to [the child] and tucked her in. At this time [the child] pointed just below her lip and stated to me, “Dada kissed me here”.
Turning to the psychiatric evidence, Dr C was also an impressive witness. I accept his evidence of the mother’s psychiatric illness, his expectation that she would make further allegations of sexual misconduct with the child against the father if the child remained in her primary care, the nature of the treatment required to address the mother’s illness, the length of time that treatment will take, and its uncertain prospects of success. Critically, I also accept Dr C’s evidence that the mother will likely not have the capacity to support the child’s relationship with her father, that it would be better that the mother not be the child’s primary carer, and that a change in residence might give the mother a real reason and motivation to continue to participate in treatment.
Insofar as Dr H is concerned, his evidence was also of assistance in outlining the scale of the problems faced by this family. In his first report Dr H expressed the view, which I accept, that the mother’s conviction that the father was a deviant personality who would molest the child at any opportunity would impact on the mother’s tendency to support the child embarking unencumbered on a fulfilling relationship with the father, and that it was not to be expected that the mother would do things to promote the child’s relationship with her father. Dr H was also concerned, with justification, that since his initial report the mother had not undertaken a further assessment of her mental health or otherwise submitted to any program of voluntary treatment. Her failure to do this is consistent with the view that I have formed on the basis of her evidence that she does not accept that she is suffering from a delusional disorder, and that she would not have embarked upon a course of treatment unless effectively compelled to do so by the progress of the litigation.
Also of significance in Dr H’s second report is his assessment that by reason of the mother’s psychiatric condition the child is “psychologically vulnerable being raised by a mother who is paranoid and delusional and erroneously convinced that [the child] is being abused”. It is a devastating critique, but I accept Dr H’s assessment in this regard.
Dr H was, however, somewhat equivocal on the question of whether there should be a change of residence. On the one hand he identified in his second report and in cross examination that, although it was sub-optimal, it might be better for the child to remain in the mother’s primary care while the mother underwent treatment for her delusional disorder. This was because of his concern that because the child had always lived with the mother, a change in residence would now be highly destabilising for her.
However Dr H also expressed the view that by remaining with the mother the child was likely being exposed to potential psychological harm, and that transitioning her into the care of her father may be necessary. He said, and I accept, that there are “concerns about the cumulative effect of [the child] being raised in an environment where fear and paranoia pervade [and] where the risk for an alienation dynamic emerging is unmistakable”.
Also, when pressed in cross examination, Dr H appeared to accept that if there could be a period during which the child moved to having overnight time with the father (as there now has been), it may in fact practicable for there to be a change in residence.
I agree with the father’s submission that Dr H accepts that his concerns about a change of residence could be ameliorated by the child experiencing significant periods of overnight time with the father before any transition to residency with the father were to occur. However, even were Dr H not to have qualified his view that it might be better for the child to remain living with her mother pending appropriate treatment, I would have preferred the evidence of Dr C that the mother should not be the primary carer of the child. I consider it to be self-evident that the best interests of the child are not served by her remaining in an environment of fear and paranoia, and where there is a risk (indeed probably a reality) that the child’s relationship with the father will be further undermined.
Further, in this respect, I accept the evidence of the father that unless the child is placed in his primary care she will not be permitted by the mother to continue to have a relationship with him, and that the mother will continue to make allegations of sexual abuse against him. Like the father, I have no confidence that the mother can promote a positive relationship between the child and the father in circumstances where she has either fabricated allegations of sexual abuse or believes them to be true.
I accept also the father’s evidence that he has never subjected or exposed the child to physical or psychological harm of any kind. All the objective evidence – Dr H, Ms N, and the Addendum Report of 27 November 2019 (although as I explain below it is problematic to make too much of the Addendum Report) points to a warm and loving relationship between the father and the child. Ms N’s report concerning time spent by the father and the child in supervised care, in particular, paints a favourable picture of the relationship between the child and the father.
Insofar as the material provided to the Court on 2 December 2019 is concerned, it is difficult to place too much weight on it in the absence of the maker of the Addendum Report and Dr L being available for cross examination. It may be significant that, according to the Addendum Report, the father’s increasing time with the child is progressing well, but one cannot be too definitive on the basis of a report of one interview with the child without the maker of the report being available. Similarly, it may also be significant that, even after the trial, the mother is continuing to make allegations about the father, but I accept the mother’s submission that the timing of the allegations referred to in the Addendum Report is not altogether clear. Although it may be accepted that the mother is now attending Dr L for treatment, I do not regard Dr L’s conclusions, shortly stated as they are, and expressed on the basis of two visits only, as being particularly illuminating. And finally, little assistance can be derived from the correspondence between the parties in relation to the issues which were confronted at some of the initial changeovers after the 5 September 2019 orders. These matters appear to have been minor, and have apparently now been resolved.
Questions for Determination
Allegations of sexual misconduct against the father
The ICL has submitted that there is no unacceptable risk for the child in being in the care of the father, and that the mother’s narrative of sexual misconduct by the father should not be accepted. For his part the father has consistently denied the mother’s allegations of sexual misconduct involving the child, there is no corroboration of any of the mother’s allegations, and all of the contemporaneous evidence and the evidence of the parties’ subsequent conduct is inconsistent with the mother’s allegations. The mother’s position is that she does not press her original case that the father constitutes an unacceptable risk to the child, although she has not actually abandoned the allegations, submitting vaguely that they were made in good faith but not made out due to health issues.
In these circumstances, having regard to the evidence in relation to the allegations themselves, and the evidence of the mother’s delusional disorder, I am satisfied that there could be no finding that any abuse has occurred and that correspondingly there could not be a finding that there is an unacceptable risk of abuse on the part of the father. Taking into account all of the evidence I am prepared to make a positive finding that the father has not engaged in sexual abuse of the child or any sexually inappropriate behaviour in her presence as alleged by the mother.
Is there an unacceptable risk of emotional or psychological harm to the child if she continues to live with the mother?
As has been stated, s 60CC(2) of the Act requires attention to be focused primarily on the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) of the Act requires greater weight to be given to the latter consideration. Conduct which may prevent a family member from making or keeping connections with her family, friends, or culture fall within the definition of family violence in s 4AB(1) and (2) of the Act.
As will be apparent, having seen the mother in the witness box for more than a day, and having had regard to her affidavit evidence, the evidence of the father, the father’s mother, the father’s mother’s husband, and the experts, I have formed the view that the mother has no functional desire to ensure a place for the father in the life of the child. I also consider that there is as yet nothing, the commencement of treatment notwithstanding, to indicate that the mother might desist from making allegations of sexual misconduct against the father.
I have also formed the view that the mother has little interest in co-parenting with the father, and indeed that she would find it difficult, if not impossible, to do this. Her ongoing attempts to exclude the father from the child’s life and to disenfranchise him from the making of all decisions concerning the child provide compelling evidence of this.
In these circumstances I consider that the mother has engaged in a pattern of conduct over at least the last four years of the child’s life which, by preventing her daughter from keeping connections with her paternal family and her paternal family’s culture, meets the definition of family violence in s 4AB(1) and (2) of the Act. I therefore accept the submissions of the father that the mother represents an unacceptable risk of harm to the child if she continues to live with her by reason of the likelihood that the mother will continue to commit emotional and psychological abuse by making false allegations against the father and by continuing to refuse to facilitate the child’s relationship with the father.
The ICL, in her 5 September 2019 submissions, makes submissions to a similar effect, albeit that the ICL appears to consider that the risk to the child can be mitigated if the mother accesses and continues psychiatric treatment. However notwithstanding the possibility of successful treatment over time, I consider that the mother’s demonstrated behaviours are simply too destructive to the psychological health of the child and her relationship with the father to permit the child to remain in her primary care. To permit the child to remain in the primary care of the mother would not be in the best interests of the child and would be inconsistent with the requirements of s 60CC of the Act.
The child of this relationship is entitled to have a primary carer who is not convinced that one of her parents engages in sexually inappropriate behaviour in her presence and is freely prepared to make allegations of this kind to a range of other people, the effect of which is to create a real risk of the child forming the view that the father has abused her in the past or is at risk of abusing her in the future, with the corresponding harm that the formation of such a view would produce.[6]
[6]Wentworth & Wentworth [2019] FamCA 57, [97].
I have described in some detail the troubling features of the mother’s behaviours and I consider that there is not yet a basis for me to conclude that these behaviours have ceased, or that the risk of them continuing has not significantly dissipated. Although I accept that the mother has commenced a course of treatment, there is nothing of substance to say how well it is progressing, and the mother herself submits that the evidence of Dr L is not evidence as to the risk of the child in her care, and that Dr L’s letter was tendered only for the purpose of showing that she has complied with the orders of 5 September 2019 requiring her to engage with a treating psychiatrist. Dr C’s evidence, it must be remembered, is that treatment of the mother’s delusional disorder may never be successful. In any event, it is far too early to make any assessment of the success or otherwise of the mother’s treatment, and the child should not continue to be exposed to the dangers of psychological harm in her mother’s care while her mother undergoes treatment.
On the subject of the mother’s treatment with Dr L, I express some disquiet about the manner in which the mother has effectively nominated a short list from whom Dr C could make a recommendation. I do not consider that her actions in this regard are consistent with the letter or the spirit of my 5 September 2019 orders, and I note the submission of the father that Dr L does not list expertise in treating delusional disorders on his webpage. Nonetheless, for present purposes no more need be said about this. The progress of the mother’s treatment may be a matter for consideration on another day.
Would the mother promote the child’s relationship with the father if she continues to live with the mother?
For all the reasons that cause me to conclude that there is an unacceptable risk of emotional or psychological harm to the child if she continues to live with the mother, I am unable to conclude that the mother has the attitude, temperament or disposition to promote the child’s relationship with the father if she continues to live with the mother. There is simply no evidence to suggest that she would do this, and indeed all the evidence is to the contrary.
How would a change in living arrangements affect the child?
I accept that, at least initially, a change in living arrangements whereby the child moves from the primary care of the mother to the primary care of the father will involve some adjustment for the child, and that a decision to make an order of this kind should involve appropriate consideration of the likely effect on the child of any separation from her mother as the person with whom she has been living, and her half-brother with whom she has also been living: s 60CC(3)(d) of the Act.
I regard it as significant, as Dr H accepts, that the effect of an order for a change of residence will be ameliorated by the fact that by the time it comes into place the child will have been spending significant time with the father, including time over about half of the 2019/2020 Christmas holiday period. All the evidence suggests that the child enjoys a warm and loving relationship with the father, and with her paternal grandmother and her partner. Indeed, I regard it as an important matter that the father proposes to live with the child in very close proximity to his mother and her partner, both of whom impressed as decent people, concerned with the welfare of the child, and available to assist in her care. I consider that the father and the child would be well served by their generous offers of assistance. That the child would also be living near the father’s brother and his family, in close proximity to the local primary school, seems an added bonus.
Despite the initial readjustment that would be required, I consider that there is a real prospect that a change in residence for the child, shortly before she is to commence primary school, with a proper regime of time with both parents, will begin a new and much more stable chapter in the child’s life. Further, I take the view that there are compelling arguments for the making of this order now, and on a final basis, rather than on an interim basis pending an assessment to be made in 12 months or so of how successful the mother’s treatment program has been. This child has lived in an uncertain state with respect to her parents for too long now, being deprived of significant time with her father. In my view it is desirable that her commencement of primary school should be accompanied by a final resolution of her living arrangements. The prospect of her commencing primary school close to her mother’s home on an interim basis (were she to remain in the primary care of her mother), or commencing primary school close to her father’s new home on an interim basis (were she to move to him) is too uncertain and not in her best interests. As I have said, there can be no certainty that the mother’s treatment program will be successful, and no certainty that it will be successful in the next 12 months.
There is, in any event, nothing to suggest that the father will be anything other than a competent parent, and I expect that he will seek whatever assistance he requires from his own mother and others in assuming his role as the child’s principal carer. Critically, he accepts the importance of the child continuing to have the opportunity to spend time with the mother and be exposed to her family and her traditions. I am not confident that the mother shares this imperative with respect to the father, his family, and his traditions. Subject to the mother continuing her treatment, and responding well to it, the child should be able to continue to spend time with her mother.
I note, and I accept, the mother’s submissions referring to Wang & Dennison that a finding that a mother has made a false allegation of sexual abuse against a father need not result in an order altering the child’s living arrangements. Self-evidently every case is different, and there may in particular cases be circumstances that would make a change of residence even more problematic than leaving the child with the mother. Wang & Dennison was obviously such a case. The children’s relationship with the father in Wang & Dennison had been damaged to such an extent that that they had threatened self-harm if they were to be obliged to spend time with the father. But that is not this case. This child’s relationship with the father is, despite the actions of the mother, a positive one and in the face of the mother’s actions a change of residence and all that that entails is, on balance, the alternative which I consider to be in the best interests of the child having regard to the primary considerations set out in s 60CC(2) of the Act.
Insofar as the additional considerations set out in s 60CC(3) of the Act are concerned, I refer in particular to ss 60CC(3)(a), (b), (c), (d), (f), (h), (i), (j) and (l) as relevant considerations to which I have had regard in reaching the conclusion that a change in living arrangements would be in the best interests of the child. Although the child has expressed hesitation about moving away from her mother (s 60CC(3)(a)), she is very young and her concern in this regard, such as it is, predates the 5 September 2019 orders allowing for overnight time with the father which has now been occurring for some months. A change of residence for the child will enable her to have a relationship with both her parents, and to develop her already strong relationship with the paternal grandmother and step-grandfather (s 60CC(3)(b)). The fact that a change of residence is practicable reflects the considerable efforts which the father has made, in the face of substantial resistance from the mother, to continue to be a presence in the life of the child (s 60CC(3)(c)). The fact that a change of residence is necessary reflects the mother’s incapacity to facilitate the father’s role in the child’s life, which is central to the child’s emotional and intellectual needs and demonstrates an unsatisfactory attitude to the responsibilities of parenthood on the part of the mother (s 60CC(3)(f) and (i)). It is plain that the mother has not facilitated the child’s engagement with her Aboriginal culture, and a change of residence will enable this to be addressed (s 60CC(3)(h)). Insofar as family violence is concerned, and as I have indicated, this is a matter which, by reason of the mother’s conduct, sounds loudly in favour of a change of residence (s 60CC(3)(j)). Finally, as I have also observed, it is desirable that the child’s living arrangements become settled and I consider that a change of residence will minimise the institution of further proceedings in relation to the child (s 60CC(3)(l)).
How could any unacceptable risk from the mother be ameliorated if the child’s residency does change to the father?
As has been mentioned, the father’s original position was that the mother initially should have only supervised time with the child. The father’s position now, however, is that he would be prepared for the mother to have unsupervised time with the child. Perhaps the fact that the mother has embarked upon a course of treatment has caused him to recalibrate his position on this issue.
I entertain some concerns as to whether, in the aftermath of a change of residence, and having regard to the mother’s psychiatric condition, it will be desirable for her to be having unsupervised time with the child. The mother’s treatment is not well advanced, and there is no report as to its efficacy. Nonetheless, in light of the father’s changed position, and the fact that the mother has commenced the program of treatment, I am cautiously prepared to proceed initially, as the father seeks, with the mother having unsupervised time with the child.
However the orders that I make for the child’s time with the mother will be made on an interim basis. If the mother’s treatment progresses well, with appropriate endorsement from her treating psychiatrist and the agreement of the ICL, the parties can submit a minute of consent orders late in 2020 making final the interim orders that I will make for the child’s time with the mother, or indeed varying them, should they wish, to give the child additional time with the mother. If the parties are not able to agree on the finalisation of the regime by that time, or an alternate regime, I will list the matter for a further brief hearing for the purpose of making final orders as to the child’s time with the mother.
It should, however, be understood that the orders for the child’s time with the mother which will be made are predicated on the basis that the mother will continue to receive appropriate psychiatric treatment. If the mother abandons her course of treatment, or it is judged to be unsuccessful, there will likely need to be an alternate regime put in place.
The Child’s Best Interests
Having regard to my answers to the key questions for determination, the substantive matters for determination will be resolved on the following basis.
Parental Responsibility
In light of my finding that the mother has engaged in family violence by preventing the child from making or keeping connections with her father, his family and their culture, I consider that the statutory presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility (s 61DA(1)) does not apply: s 61DA(2). However regardless of whether or not the presumption applies, having regard to the acrimonious state of the relationship between the mother and the father, the fact that the mother has worked so assiduously to keep the father out of the child’s life, and the fact that the child is to live primarily with the father and go to school near his home, I consider that it would not be in the best interests of the child for the mother and the father to have equal shared parental responsibility for the child. The preferable course, in my assessment, is for the father to have sole parental responsibility for the child, save for a requirement that other than in the event of an emergency he consult with the mother and consider her views before making long term decisions concerning the child. This is, in substance, the regime that the father has proposed, and there will be orders to this effect.
I accept, in this respect, the submissions of the mother made at the conclusion of the trial that joint parental responsibility would not be appropriate because it had been the evidence of Dr H that the parties are not capable of the level of communication and coopertion which would allow joint parental responsibility. It is clear on the basis of the parties’ own evidence that Dr H is correct in making this assessment, and it is not apparent that the parties have any expectation that things between them will much improve. I consider that for them both to have equal shared parental responsibility would simply be productive of further disputation between them, which will not be in the best interests of the child.
Notwithstanding my finding in this respect, the father must accept, in the interests of the child, that the mother may have legitimate views to express in relation to the child’s upbringing. I am confident that he does accept this and will continue to accept it over time. It would not be appropriate for the mother to be denied any voice in relation to the child’s care and upbringing, and I consider that to remove from her any ability to be involved in decisions relating to the welfare of the child may risk her becoming a passive player in the child’s life. In the event that the mother’s treatment program is successful it would be undesirable for her to have no functional role in the life of her daughter.
Residence and schooling
In light of my finding that there is an unacceptable risk of emotional or psychological harm to the child if she continues to live with the mother, and my finding that the mother will not promote the child’s relationship with the father if she continues to live with her, it follows that it is in the best interests of the child that henceforth she live with the father. There will be an order to this effect.
In circumstances where the mother and the father live approximately 40 kilometres away from one another, self-evidently it would be in the child’s best interests that she attend the local school proximate to her new residence, rather than a school proximate to the mother’s residence. Accordingly, there will be an order that the parties do all such acts and things to enrol the child at Suburb B Primary School, commencing in the first term this year.
Time to be spent with the Mother
Consistently with the father’s view that the child has a right to an ongoing relationship with the mother, the father has proposed, despite the mother’s diagnosis, an arrangement that would have the child spending unsupervised time with the mother for a further week of the present school holidays, each alternate weekend during term time, on Wednesday nights during term time between 4.30 pm and 7.30 pm, for half of all terms holidays, for two weeks in all long summer holidays, at defined times on special days (with a suspension during the second half of NAIDOC week), and at other times as may be agreed between the parties.
Although, as I have said, I have some concerns about the unsupervised nature of the time the father proposes the child spend with the mother having regard to the mother’s psychiatric condition, I am prepared to make orders broadly in the terms sought by the father on an interim basis, pending the mother’s continuing attendance on her treating psychiatrist and the mother following all lawful directions made by her treating psychiatrist, including the taking of prescribed medication.
However insofar as the father appears to be prepared to continue the orders made on 5 September 2019 which would have the child spending time with the mother in the period 15 January to 22 January 2020, I consider that in all the circumstances the best interests of the child lie in the child remaining in the care of the father from the date of judgment until Friday 7 February 2020 (that being the child’s first weekend with the mother). The orders which are to be made represent a significant change in the child’s life and in my assessment it would be preferable to stabilise her living arrangements in the weeks leading up to her commencement of primary school in Suburb B.
Insofar as there will be orders requiring the mother’s ongoing attendance on her treating psychiatrist, the mother has proposed orders that she continue to attend on her treating psychiatrist, and that she follow his lawful directions not limited to the taking of medication. She has also proposed orders authorising her treating psychiatrist to provide a report to the ICL at least once every three months briefly outlining her attendance, her compliance with treatment, and any other relevant matters, and that she be responsible for the costs associated with her treatment.
There will be orders on an interim basis for the child’s time with the mother and for the mother to continue to attend upon her treating psychiatrist as outlined, and subject to the regime for review of the mother’s treatment forshadowed in paragraphs [268] and [269] above.
Other orders
The father has also proposed orders providing for the parties to keep each other informed of any changes of their address or contact details, for the parties to keep one another informed of any illness or injury suffered by the child whilst in their respective care and of any medical professionals consulted, for the mother to be restrained from taking the child to any counsellor, psychologist or other such medical professional without the written consent of the father, for the father to be at liberty to apply for a passport for the child and travel overseas with the child at certain times, and for this judgment to be provided to the mother’s treating psychiatrist and the Department. I consider it to be in the best interests of the child that orders in these terms be made. Certain of these orders will necessarily be made on an interim basis.
The parties have proposed orders, albeit in somewhat different terms, providing for them both to communicate with relevant school or education-related professionals, to receive school reports and the like, to attend at school events, and to communicate with any medical or allied professionals providing treatment or care to the child, and restraining one another from denigrating the other in the presence of the child. I consider it to be in the best interests of the child that orders along these lines be made also, although insofar as the mother is concerned, certain of these orders will necessarily be made on an interim basis.
In all the circumstances there will also be an order that in the event that either of the parties makes any parenting application in relation to the child or issues any enforcement or contravention application in respect of these orders within the next 24 months that such application be listed, if practicable, before me.
I will otherwise adjourn the matter for mention on 7 December 2020. As I have indicated, the parties should either present consent minutes of final orders on that day providing for the child’s time with the mother, or a timetable for a final hearing on the question of the child’s time with the mother.
I should express, in conclusion, the Court’s gratitude to all three counsel who appeared at the trial of this proceeding. Their involvement greatly assisted in the efficient conduct of the matter.
I certify that the preceding two hundred and eighty-five (285) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 9 January 2020.
Associate:
Date: 9 January 2020
Addendum
On 9 January 2020, prior to making the interim orders that were subsequently made on that day, I informed the parties that I was disinclined to continue the arrangement which was the subject of my 5 September 2019 orders insofar as it involved the child spending time with the mother in the period of 15 to 22 January 2020. This issue is dealt with in paragraph 278 above.
Nonetheless, all parties, including the ICL, made an application for the restoration of that week for the child to spend time with the mother. In those circumstances I was prepared to make order 14(a) permitting the child to spend time with the mother from 10.00 am on 15 January 2020 to 10.00 am on 22 January 2020.
I certify that the preceding two (2) paragraphs are a true copy of the addendum to the reasons for judgment of the Honourable Justice McEvoy delivered on 9 January 2020.
Associate:
Date: 14 January 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Procedural Fairness
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Costs
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Remedies
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Jurisdiction
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