Randall and Dornan

[2018] FCCA 1659

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANDALL & DORNAN [2018] FCCA 1659

Catchwords:
FAMILY LAW – Parenting – child with complex needs – relocation.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 60CG, 65DAA, 91B

Cases cited:

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR & GR [2010] HCA 4

Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MR RANDALL

Respondent: MS DORNAN

File Number: BRC 10780 of 2014

Judgment of: Judge Obradovic

Hearing dates: 13, 14 and 15 June 2018

Date of Last Submission: 15 June 2018

Delivered at: Parramatta

Delivered on: 9 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Cairns

Solicitors for the Applicant: R.A Solicitors

Counsel for the Respondent: Ms Snelling

Solicitors for the Respondent:	Macarthur Law Group
Counsel for the Independent Children's Lawyer:	Mr Berry
Solicitors for the Independent Children's Lawyer:	Blumberg Family Lawyers

ORDERS

1. All previous orders are discharged.

2. The father shall have sole parental responsibility for the child [X] born 2012.

3. The child shall live with the father.

4. The father is permitted to relocate the child’s residence to Queensland.

5. The father shall make all necessary arrangements to seek the assistance of appropriate professionals as is recommenced by Dr P for the child and himself, and the father shall thereafter follow all reasonable recommendations made by such professionals.

6. The child shall spend time with the mother at all times as can be agreed between the parties in writing and failing agreement:

   (a)For not less than once every two months for a period of one day, such time to be supervised in Brisbane by Suburb B Children’s Contact Centre in Queensland; and

   (b)For not less than once every intervening month for a period of one day, such time to be supervised by Sydney Children’s Contact Centre at Suburb C.

7. Each party shall attend to undergoing the intake process at each of the contact centres within seven days of the child relocating to Queensland.

8. When the child is to spend time with the mother in Queensland the mother shall travel to and from Queensland for such purpose and when the child is to spend time with the mother in New South Wales the father shall travel with the child to and from New South Wales for such purpose.

9. The father shall:

   (a)Sign all documents and do all things necessary to authorise the school at which the child may attend to furnish the mother with copies of all school reports, notices and advices concerning the child and any activity involving the child and to make available to the mother copies of any school photographs of the child at the mother’s expense;

   (b)Notify the mother immediately of any major illness suffered by the child or any hospitalisation of the child;

   (c)Make available to the mother copies of any medical report or reports that may be sent to the father in connection with such illness or hospitalisation; and

   (d)Authorise any hospital in which the child may be admitted and any medical practitioner under whose care the child may be to give such information to the mother as she may request.

10. Each of Mr Randall and Ms Dornan and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of [X] born 2012 from the Commonwealth of Australia.

11. [X] born 2012 be and is hereby restrained from leaving the Commonwealth of Australia.

12. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 21 September 2028.  

13. Upon expiration of the period referred to in Order 12 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of    the child or children’s names from the Watch List. 

IT IS NOTED that publication of this judgment under the pseudonym Randall & Dornan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

BRC 10780 of 2014

MR RANDALL

Applicant

And

MS DORNAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. Five year old [X] does not know her father. Her mother does not speak of him; and the father is a taboo subject in the mother’s household.  [X] has been living with her mother since the parties’ separation in March 2013. At the time of the parties’ separation [X] was not even six months old.

2. Despite orders made by the Federal Circuit Court of Australia in September 2015 restraining her from leaving Queensland, the mother moved to New South Wales in February 2016 where she and [X] have been living since. In the face of these proceedings and the father’s application, the mother has refused to facilitate any type of relationship between [X] and her father. Her position at final hearing was that there should be an order that [X] spend no time with her father.

Relevant Legal Principles

1. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

5. In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.

6. A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]

   [3] McCall & Clark at [122]

7. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

8. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

9. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]

   [6] MRR v GR [2010] HCA 4 at [15]

[X] and the mother’s ability to care for her

1. [X] has been differently described in various documents. Her needs are complex.

   a)To Ms B who prepared the Child Dispute Conference Memorandum, [X] (at two years and five months) was described by the mother as having serious developmental, behavioural and emotional problems, such as delayed speech, aggression, hyperactivity, severe separation anxiety and difficulty socialising with other children.[7]

   b)To Ms R, [X] presented as an initially shy girl, who was easily engaged in a short time.[8] Ms R did not observe any of the aggressive behaviours reportedly observed by others. Ms R also opined that behaviourally children will pick up behavioural issues of their parents. Ms R was not able to answer precisely  why there would be such a difference in behaviours from the interview with her to that with Dr Y but that “we do know that children pick up behavioural issues”

   c)Dr B’s[9] notes describe [X] as “she knocks over things and throw things… always child busy yell and scream oppositional”

   [7] Exhibit 1 at p2

   [8] Exhibit 3 at [17]

   [9] Dr B is a general practitioner, see Exhibit 8

2. On 17 May 2017 Dr G paediatrician provided a very short report[10] to Dr N[11] in respect of [X], whom he saw on 8 May 2017[12]. The extent of the consultation is not known, nor is the history which might have been provided. It is also completely unclear from that report on what basis the opinion that [X] has “Autism Spectrum Disorder level 1” was given. It is likely that this was part of the history provided rather than a diagnosis made by Dr G, noting the Problem List at the commencement of that report being:

   a)Autism Spectrum Disorder level 1

   b)Early Attention Deficit and Hyperactivity Disorder

   c)Sleeping Difficulties

   d)Oppositional and Defiant Disorder with separation anxiety

   [10] The report is only 4 paragraphs long

   [11] Presumably a general practitioner

   [12] The report forms part of Exhibit 9

3. This document is the earliest medical opinion in the evidence which suggests that [X] is on the autistic spectrum. It is not clear from the evidence how the child came to be referred to Dr G. However, by letter dated 8 May 2017, Dr G referred [X] to a child psychiatrist at ICAMPS Suburb A. It does not appear from the evidence that the mother followed through with that referral.

4. By letter dated 22 July 2017, Dr B referred [X] to Dr T at the Sydney Children’s Hospital. It does not appear from the evidence that the mother followed through with that referral.

5. By letter dated 15 August 2017, Dr B referred [X] to Dr M at the Sydney Children’s Hospital. It does not appear from the evidence that the mother followed through with that referral.

6. However, [X] was assessed by Dr Y, at the Sydney Developmental Clinic on 21 September 2017, pursuant to a referral by Dr B. On that occasion, [X] was accompanied by her mother, her maternal grandmother and her sister [Y]. The report reads:

   It was very challenging for me to carry out this consultation today as [X] was very disruptive, unsettled and often controlling of her mother’s interactions and became aggressive at times and destructive of property in clinic room (repetitive slamming doors and banging toys on table) when things did not go hr way resulting in the family becoming quite unsettled. The family presented as being under significant stress during my appointments which did impact information gathering and communication. I did not feel I was able to carry out an ideal assessment as there was significant disruption, distress and interrupted communication throughout. [X] did however settle at time throughout the appointment and I managed to gather preliminary information required for an initial overview of the family’s concerns and [X]’s presentation. 

   …

   On examination, [X] was coordinated with her walking and she entered the room without any distress. As mentioned she was very disruptive throughout but mostly in attempting to get her mother’s attention. She was keen to play with the toys once she settled after opening and closing the door or looking at the objects around the room. She was observed to frequently be checking her mother or me for a reaction with her disruptive behaviour and seemed to be keen to make loud noises in order to get attention. Her behaviours were not repetitive or ritualistic on observation. Once I was able to engage her she pushed the cars to and fro with me and seemed very happy to engage in interactive play led by me She was keen to count the number of coloured textas and was very happy to repeat this when in the form of a game. She also seemed to be able to identify her colours but tended to do things on her own terms. She was cooperative for examination with measuring of her height and weight as well as blood pressure and was very engaged with good eye-contact throughout. She was able to show me her motor skills and jumped well and was able to balance on each foot for five seconds. She laughed and smiled and was keen for praise. 

   …

   Summary

   [X] is a 5-year-old girl who has been exposed to significant trauma and complex social circumstances on her mother and grandmother’s report since birth. There is reported to be court proceedings in place with regard to custody but currently she is in the full time care of her mother and does [sic] have any contact with her biological father.

   Our assessment and interaction was very challenging today due to [X]’s very unsettle behaviour which was not only disruptive from a noise and safety perspective but also made it very difficult for her mother and grandmother to concentrate on providing information or receiving feedback.. Her mother and grandmother were notably distressed at times throughout appointment and reported they were in crisis and wanted urgent support. I understand the family were very distraught and were very keen for any supports that could improve the day-to-day function given the disruption to the household of [X]’s behaviour.

   Based on initial cognitive assessment, it appears that [X] presents with scores ranging from average to very low although she was noted to have particular strengths with verbal comprehension and fluid reasoning. I did feel her behaviour and concentration were likely to impact her performance so these results should be interpreted with caution and further testing when she is older with hopefully more settled behaviours would be important. Given her young age and limited access to date with preschool or day care, limited assessment was able to be performed on early achievement tests.

   Overall I think [X]’s presentation is likely to be complex in view of adverse social circumstances with significant trauma exposure and genetic predisposition. She presents currently with likely combined subtype ADHD as well as oppositional defiant disorder symptoms with associated significant separation anxiety and likely attachment disordered behaviours. Her presentation and history supports a diagnosis of complex trauma syndrome. It should be noted that this would require further assessment and clarification by a child and adolescent psychiatrist and I would be keen for the family to be able to access one for ongoing support.

   I understand that she previously has been assessed as having an autism spectrum disorder given her significantly challenging behaviours and interactions. I did observe her social interactions when she was settled in between challenging behaviours was very positive and receptive and I did not feel that this diagnosis was able to be confirmed currently and again further clarification would be warranted when her behaviours have improved.

   Given the significant stressors within the family, I feel that a family based attachment focussed therapy and intensive parenting support would be a priority in order to support the family’s wellbeing and improve [X]’s behaviour. I would be keen for local supports to be engaged this given the intensive needs required. Optimising Ms Dornan’s mental health and wellbeing in view of the complex trauma history would also be essential in order to best improve [X]’s behaviour and Ms Dornan’s capacity to best access services required.

   The family was very vocal in their desire for medication options and were keen to trial stimulant medication options given her very challenging behaviour. Given the challenging circumstances with the family in crisis, I was willing to support their request of a trial with close monitoring. As they did not feel that the dexamphetamine was effective, they were very keen to trial Ritalin, an alternative medication, and I was happy to trial this in low doses over the next month. I was very clear in stating that accessing mental health services for both [X] and Ms Dornan (as well as other family members) as well as parenting support was a requirement in order for ongoing mediation support to be an option. If this is not followed through, medication would not be able to be supported by me as I did not feel medication alone would be of benefit and the family agreed to this. The family also will need to ensure [X]’s transition to school next year is followed through.

7. A number of recommendations were made by Dr Y, which it appears on the evidence have not been followed through by the mother.

8. On 10 August 2017 Ms C, a worker from Child and Family East Services[13] telephoned the mother and spoke with her about counselling services available to the mother and [X]. In a follow up phone call on 17 August 2017, the mother declined the assistance of Brighter Futures. Ms C was “quite clear” when speaking to the mother that assessments and medications alone would not be sufficient to settle [X]’s behaviour, however, the mother disagreed. The mother felt “that she was the only one who could help [X] settle as [X] would not engage with anyone else”. This is not the only time such sentiments were reportedly expressed by the mother.

   [13] One of the services the mother was referred to by Dr Y

9. A follow up letter to Dr B dated 12 October 2017 confirms that the mother was told by Dr Y that it was essential for the family to engage family support intensively given [X]’s needs or Dr Y would not be able to continue to support with medication alone.

10. A handwritten note by Dr Y reads as follows:

    ·Seen on one occasion only 21/9/17 by me

    ·Attempts to engage family in local support services for ongoing care but difficulty in this being arranged

    ·Have not been able to contact family in recent times

11. In February 2018 a report was made to FACS as follows:

    It is alleged that the mother consumes 6 pack of beer daily and that [X] is seen wandering/playing in the apartment block without adult supervision, even up to 3-4am in the morning. It is reported that on one occasion [X] was playing in the blow up pool with her neighbour (4 year old) on her own and [X] allegedly attempted to drown the neighbour by holding his head down…

    Report screens in for [X] (5) and [Y] (13) under medical neglect as mother Ms Dornan admits to increasing [X]’s dosage of her Clonidine when [X]’s behaviours escalate.

    Reported noted that [X]’s behaviour was quite settled in hospital. Ms Dornan also made derogatory comments to [X] when [X] asked her to read the title of the colouring book she was doing in hospital.

12. The mother denied that there was any truth to this allegation of [X] wandering around the apartment block unsupervised. She said that it was a report by her neighbour made as a result of [X] holding down the neighbour’s child’s head under water when the children were playing. The mother was not asked in cross-examination about the allegation that she (over) medicates [X] when [X]’s behaviours escalate[14].

    [14] It is likely that even if she had been asked such questions her evidence would not have assisted the Court. The mother was an extremely difficult witness to control. She was often not answering the questions which were asked of her and giving information which was not responsive to the question. She spoke over the cross-examiner and started providing what information she wanted without waiting for the questions to be completed.

1. A further report was made to FACS shortly thereafter, about the mother leaving the emergency department without having [X] admitted. The mother’s evidence was very confusing on this issue, but it is clear that she left the hospital without waiting for [X] to be seen by a doctor because in her view [X]’s behaviour was so bad that she could not stay there. It is difficult to understand why the mother would think that medical staff at an emergency department of a children’s hospital would not be just as equipped as she is (if not better equipped) to deal with a child with special needs. She was unfortunately, not asked such questions in cross-examination[15].

   [15] ibid

2. The notes from the Sydney Children’s Hospital[16] show that:

   [16] Exhibit 9

   a)[X] was brought into the emergency department by an ambulance on 3 April 2018.

   b)The hospital copy of the ambulance record reads:

   C/T 50YOF AT HOME, PSYCH NON-SUICIDAL. PER MOTHER/GRANDMOTHER ON SCENE, PT HX OF AUSTISM, ADD, OCD, ONGOING INVESTIGATION INTO MENTAL HEALTH. MOTHER STATES HX OF BEHAVIOURAL DISTURBANCE, SCREAMING, BITING, THROWING THINGS, ASSAULTING OTHER CHILDREN. MOTHER STATES PT FEQUENTLY NONCOMPLIANT WITH MEDICATION – TODAY REFUSED TO TAKE RISPERIDONE. TODAY, MOTHER STATES, PT REFUSING TO WEAR CLOTHES, VIOLENT   TOWARDS MOTHER/GRANDMOTHER, THROWING OBJECTS AND HITTING THINGS WITH HER HANDS, MOTHER STATES CONCERNFOR PT SAFETY, HER OWN SAFETY, SAFETY OF PETS. O/A PT AMBULANT HOUSE, UNDRESSED. HOUSE VISIBLY IN DISSARAY, OBJECTS STREWN ACROSS FLOOR. PT REFUSED CDA ASSESSMENT – SCREAMING AND LOCKING SELF IN TOILET. PT BECAME VIOLENT WHEN CDA ATTEMTPTED TO ACCESS TOILET – ATTEMPTING TO SLAM DOOR ON CDA. PT HITTING HANDS ON WALL, THREW MUG ACROSS ROOM, REPEATEDLY BIT MOTHER. MOTHER OBSERVED TO BE APATHETIC TOWARDS BEING HIT/BIT. POLICE ATTACHED TO CASE, INSPECTOR 3045 BAKCING UP. WITH INSPECTOR 45, 2X 2.5MG MIDAZOLAM ADMINISTERED IM PRIOR TO DEPARTURE. MINIMAL EFFECT NOTED. PT TX TO SYDNEY CHILDRENS HOSPITAL, ACCOMPANIED BY MOTHER IN BACK OF CAR.

   c)The discharge referral from the hospital to Drs H and S provides as follows:

   Assessment – acute behavioural disturbance on background of complex cognitive and psychosocial background

   Concern is origin of fever in this context

   Currently not demonstrating any features to warrant aggressive sedation, investigation and management of sources of fever

   d)The mother attended the emergency department with [X] on 4 May 2018 advising that she had run out of Ritalin 10mg and that she needed medication.

   e)The progress notes from the paediatric registrar record the following history:

   Escalating behaviour over the last month, Ms Dornan is not coping

   Lives with [X] and 16yo older sister at home

   States saw Dr Y last year and script for ritalin given – has run out over 6 months and used all 3 repeats

   For the last month has not had ritalin at all

   Stated unable to get appointments with Dr Y, has a general peads clinic apt with Dr G in June but too far away

   Stated GP would not prescribe for her

   Stated she has been self-increasing clonidine does due to heaviour and inability to see paediatrician de to long waiting times

   Stated [X]’s ‘blood pressure is probably in her boots’ due to the increased dose

   …

   [X] calmly colouring in, sitting at table

   f)A referral was received from the emergency department to a social worker, who when she presented to the emergency department noted that [X] and the mother had left.

3. Whether [X]’s behaviours are as a result of various health issues, partly learned or wholly learned behaviours, they are behaviours which she presently exhibits – according to the most recent detailed report of Dr Y. What is interesting is that Dr Y is not certain that the child is on the spectrum.

4. A significant concern for the Court is whether [X] has been receiving any adequate medical or other care, and that the mother has refused to engage with services which have been offered. It is also significantly concerning that the mother’s attitude is that she is the only one who can handle [X]’s behaviour, particularly in light of her seeking assistance because of her inability to cope. It is difficult to accept any of the mother’s evidence surrounding [X]’s care given the inconsistencies which have been identified in these Reasons.

5. What is clear though, is that the mother has failed to follow through with the various recommendations made for [X]’s treatment, particularly including referrals for various services.[17]

   [17] See also for example Exhibit 4 regarding the Benevolent Society Program which was proposed to the mother which she declined to engage in

6. The Court finds that the mother has not been meeting [X]’s needs.

[X] and the father

1. [X] was still a baby when the parties separated, and while there were occasions post separation when the father spent time with [X] in the presence of the mother, this occurred when she was no more than twelve months old. Since then, and except for the one occasion on 25 January 2016, she has not seen her father.

2. The length of time for which [X] has not seen her father, combined with [X]’s young age, suggested to Ms R that [X] at the time had no recollection of her father at all.

3. Despite this, on that one occasion when she was observed by her father on 25 January 2016, she settled into the visit very quickly and was observed to delight to the father’s attentions. In the opinion of Ms R the reintroduction of [X] and the father went very well.

4. The father was observed to act appropriately, providing [X] with space and time to feel comfortable.

5. No doubt, that brief reintroduction would not have left a lasting impression on [X] and it is likely that she has no memory of her father at all. He is, for all intents and purposes, a complete stranger to her.

Evidence of Dr P

1. Dr P was not able to complete his report or make any more than the basic recommendations because he could not complete his assessment of Ms Dornan. A note to the interview with the mother reads as follows:

   As I have stated above, I did not complete my assessment of Ms Dornan. She attended my rooms for her first scheduled appointment and I was able to observe her interacting with her two children. I required Ms Dornan to return to my rooms on another date, due to my need to keep her and Mr Randall apart (at Ms Dornan’s request) and simply due to the fact that I would not have enough time in the day to interview her, once I had interviewed Mr Randall (whom I also interviewed across two occasions), Ms Dornan’s mother and had observed interactions between the child and her mother. Ms Dornan made in abundantly clear to me that she would not return to my rooms again – that she was too busy to do so. However, she agreed for me to interview her on another day at her home. I travelled to her home and interviewed her on 21-07-2015. She had a great deal to say and did not take any advice from me about what I wanted to know from her. She was very difficult to interview: She was very verbose and spoke in intricate detail of her experiences with Mr Randall but without being able to give me any dates or even keep to a loose time-line. It was apparent that I was not going to elicit from her any other information until she was satisfied that she had told me everything she thought I might need to know. She did not seem to be able to hear or focus on anything I was saying to her. After two hours with her, I decided that I needed to spend at least another two hours with her to complete my assessment and I made the decision to interview her for a second time. She seemed happy for me to visit her again and we agreed that I would telephone her when I returned to my office. I made many calls to her and left numerous messages but she did not answer my calls or respond to my messages. She eventually took my call and we arranged a time for me to visit her. She later telephoned me and asked for me to visit her on a different day and I told her personally that I could do so at the time and date she requested (Monday 07-09-2015). She told me that her mother was going to look after [X] while we met.

2. What was clear to Dr P was that the mother was not willing to facilitate a relationship between [X] and the father.

3. In cross-examination Dr P opined that any change in residence for [X] would mean a very difficult transition, particularly as she did not know her father at all. However, Dr P also said that there was no doubt that [X] would adjust, but that it may take a long time. Dr P identified that the father would need a great deal of time, flexibility in employment, family support and strength of mind to cope with [X] coming to live with him. The Court finds that the father not only has such qualities of character, but that he has the supports around him to offer him and [X] the best chance possible.

Evidence of Ms R

1. During the day when the family arrived for the Family Report interviews, the mother was observed by Ms R to be exhibiting aggressive and inappropriate behaviours. She attended the child care centre where [Y] and [X] were placed and insisted upon leaving with the children, prior to any interviews taking place. She was observed to be yelling and swearing, and saying inappropriate things in front of the children, including allegations that the father had raped her. Ms R directed the mother to stop behaving in this manner in front of the children, however, the mother did not do so and continued. In the end, [Y] had come out of child care in order to be with her mother.[18]

   [18] A report of these matters also appears in Exhibit 5

2. Ms R explained that although she did not prepare her report as a full Family Report there are a number of generic issues that would need to be explored if there was a change of residence for [X]. These include the impact of the relocation which typically outweigh the reasons for going versus the cost of leaving, the change in the child’s community such as friendships, school and home as well as any relationships with extended family that may be reduced due to the relocation. Further, Ms R said other factors such as the capacity of the parent to whom the child is moving to is able to assist must be considered. Ms R said that regardless of the state of relationship of the parent the child is leaving, [X] would experience a sense of loss and that she would be concerned with disrupting a secure and healthy relationship with her primary carer. She said that this does not mean that a relocation is not possible however, the capacity of the parent she is moving to is important to ensure that she has the right supports in place to help her through this “loss”.

Maternal Grandmother

1. The evidence of the maternal grandmother was at times confusing, perhaps due to the nature of the questions put to her in cross-examination, and in particular the imprecise nature of allegations put to her by Counsel.

2. An example of the confusing nature of allegations is as follows:

   a)It was put to the maternal grandmother that she had made a complaint to Family and Community Services (“FACS”) about the children coming to her home and asking for food as they had not had enough to eat at home.

   b)It was put to the maternal grandmother that she reported to FACS that she had concerns regarding lack of supervision and lack of food, and that the mother was apparently drinking daily.

3. The paternal grandmother denied that she had ever made any such report. Indeed, she looked completely surprised when it was suggested to her that she had done so.

4. What is clear from Exhibit 5[19] is that a report had not been made by the paternal grandmother, but rather that the paternal grandmother was a client of the person reporting these matters. At best, the matters reported were second-hand hearsay.

   [19] Documents produced under subpoena by Qld DoCS

5. The maternal grandmother did concede in cross-examination that the mother had assaulted her and that there had been an Apprehended Violence Order (“AVO”) made for her protection with the mother named as a defendant. This was when the mother and maternal grandmother first moved to New South Wales from Queensland, that is, in early 2016. The maternal grandmother said in cross-examination that she might have been kicked by the mother during the incident because she had a bruise on her leg, but that this was because the mother had kicked out with her leg. To the Court it appeared that the maternal grandmother was trying to minimise the assault upon her by the mother.

6. The maternal grandmother denied in cross-examination that the children had ever come to her hungry in the way reported to FACS or that the mother drank on a regular basis. It was certainly not made clear during cross-examination that the incident reported in the FACS material was an incident going back some time, as [X] was said to be four at the time of the report and the report spoke of the AVO and that the family had moved from Queensland eight months ago. This places the report in or about mid to late 2016.

7. The dynamics between the mother and the maternal grandmother are such that the maternal grandmother is a source of great support for the mother. She is there to help the mother in whatever way is needed in relation to [X]’s care.

8. The maternal grandmother gave evidence that the mother was a loving and caring parent, who did everything for her children. She described her as incredibly patient.

9. The Court accepts the evidence of the maternal grandmother as matters which she believes are true. However, the opinions of the maternal grandmother are not accorded any significant weight as they were given without requisite factual basis firstly being established and are otherwise not relevant. For example:

   a)The assertion of the maternal grandmother that the father had prevented the mother from contacting her for a period of one year was based on hearsay[20].

   b)Next, the assertion of the maternal grandmother that the father was physically abusive of [Y][21] are based on what [Y] had apparently told her, with her account of that to the Court in cross-examination being different to the account she provided to Dr P. The maternal grandmother was not cross-examined on these inconsistencies.

   c)Thirdly, the maternal grandmother asserts that the father has made it clear that he would not support the needs of his own daughter and this is why the maternal grandmother has been financially assisting the mother. This is not borne out on the evidence. In fact, the father has attempted to pay child support but the mother has refused to have him assessed or pay any child support.

   These are but three examples of such matters.

   [20] The Court does not accept the mother’s assertions in this regard in any event

   [21] The father asserts that it was the mother who was physically and verbally abusive of [Y]; [Y] did not participate in any family report interviews

10. The maternal grandmother’s positon is that she will never support any arrangement for the father to spend time with [X] nor to live with her on a permanent basis.

11. The maternal grandmother said that she would not let [X] near her father, indeed she would not let a dog near him. The maternal grandmother intensely dislikes the father.

[Y]

1. [Y] is [X]’s older sister. She has had a difficult life.

2. As a young child she was removed from her mother’s care by the then Department of Family and Community Services. She lived with the maternal grandmother and in foster care during the period of time her mother was not deemed able to look after her properly.

3. The mother alleges that [Y] was subjected to physical and verbal abuse by the father during the parties’ relationship. The allegations include:

   Another significant incident of abuse of [Y] occurred when we were living in the caravan park in Suburb D. I was about five months pregnant at the time. This incident eventually involved the police. I recall that on the night in question we were eating dinner which was a salad. The salad had raw capsicum in it. [Y] did not eat the capsicum because she didn’t like it. Mr Randall started to get angry and said to her “you’ve got to eat your fucking dinner!” He then grabbed her head and shoved the capsicum into her mouth and forded it down her throat. She promptly vomited the capsicum and some of her meal up and all over the table. He then exploded-he got up, grabbed her by the upper arms so that her feet were off the floor. He started to bash her back against the caravan door countless times. At the same time, her head was hitting the door every time he bashed her little body against the door. He is a very tall man. She was crying and I was telling him to stop.  I said “it’s just capsicum who cares? I did not try to physically separate them because I was very pregnant. This continued for five to ten minutes. After he put her down, he continued to yell and scream at her afterwards. She ended up with huge bruises on her arms after this incident.[22]

   [22] Paragraph 82 of the mother’s affidavit

4. The mother never reported this terrible alleged assault upon a young child to the police, nor did she take [Y] to a doctor.

5. The father denies all of the allegations the mother makes, and indeed alleges that [Y] was subjected to physical and verbal abuse by the mother during the parties’ relationship. The allegations include that when he first met [Y] “she basically sat in a corner rocking”[23]

   [23] Exhibit 2 at [33]

6. [Y] was not interviewed, although she was present with her mother, for the family reports in this matter. Her independent views are not known. Her relationship with [X] is not known except to the extent that it is described by the mother and the maternal grandmother. It appears from those descriptions that [Y] is the target of very aggressive behaviour by her younger sister and that she misses out on spending much time with her mother due to the mother’s care of [X].

7. After the mother moved to New South Wales in early 2016, [Y] did not attend school for a number of months. The mother does not seem to think that this is a problem for [Y].

8. [Y]’s school attendance at present is such that she will miss out on 1-2 days of school each month. The mother says this is mostly due to her periods, but the maternal grandmother says that this is due to [Y]’s anxiety.

9. The maternal grandmother is of the opinion that [Y] is petrified of the father and that she has been deeply affected by the violence which he is alleged to have perpetrated upon her and the mother.

10. In Ms R’s observations of [Y] and the mother, the mother appeared to be emotionally reliant on [Y] and [Y] was observed to be parentified. The mother was observed to engage [Y] in inappropriate discussions and appeared less able to manage her own behaviour without [Y] present. The mother was observed to use specific words and phrases to influence the child’s behaviour and decisions[24]

    [24] Exhibit 5 and Exhibit 3 at [26]

Other relevant matters

1. Ms R’s observations of the mother are as follows:

   Ms Dornan’s volatility, pressured speech, difficulty following her own ideas and sudden changes in emotion on the day of the CDC do indicate a current difficulty with mental health.

2. The mother gave evidence of what she understood her current diagnosis was, namely post-traumatic stress disorder (as a result of the father’s violent behaviour) and generalised anxiety. She takes Prozac, an anti-depressant and other medication for her migraines. She has a number of minor health conditions, albeit in her affidavit she indicated she was “in good health”.  She indicated in cross-examination: “I cannot be without my medication.”

3. However, there was little evidence in the mother’s case of any expert nature which might go towards her mental health and otherwise explaining her behaviours and demeanour at least as observed during the hearing and as described by Ms R.  This lack of evidence gives rise to a Jones & Dunkel[25] inference in respect of the mother’s capacity to parent and look after [X]’s needs.

   [25] The ‘rule’ in Jones & Dunkel can be explained as follows , as far as relevant to these proceedings:

1. It was submitted during closing submissions on behalf of the mother that the Court should only make interim orders in this matter. It was further submitted that the Court could not make final orders in the absence of expert evidence regarding [X]. The Court is satisfied that any further delay in a final decision is not in [X]’s best interest. The mother has refused to participate in Family Report interviews[26], and there had been discussions with the parties for the provision of an expert’s report – the funding for which could not be obtained. Any further delay would be to [X]’s detriment, particularly given the finding that the mother has not been meeting [X]’s needs.

   [26] Including in March 2018, pursuant to an order made in mid-2017. The delay in Family Reports in the Parramatta Registry was a significant concern to the Court, given that it takes approximately 8-12 months for the reports to be prepared due to a lack of resources.

Chronology of Proceedings

1. These proceedings have been on foot since 28 November 2014, when the father filed an Initiating Application in the Brisbane Registry of the Court seeking inter alia orders for the child to live with him.

2. The matter has been before the Court on the following occasions:

   a)16 February 2015[27] when the mother was directed to file a Response and Affidavit within 14 days. The mother did not comply with this order, instead she filed a Response and Affidavit on 9 March 2015;

   [27] The mother was represented on a duty basis

   b)16 March 2015[28] when the mother was directed to use her best endeavours to obtain an updated psychological report from her treating psychologist and file and serve an affidavit attaching the report within one month. A short one and a half page report, annexed to an affidavit was filed on 4 May 2015[29].

   [28] The mother was represented by a solicitor

   [29] That affidavit was not relied upon at final hearing

   c)5 May 2015[30] when an Independent Children’s Lawyer was appointed to represent [X];

   [30] The mother was represented by a solicitor

   d)14 May 2015[31] when an order for the child to spend supervised time each alternate Saturday with the father was made. On that occasion the parties were directed to complete the intake process for the Contact Centre. The father’s evidence is that the mother did not complete such intake process.

   [31] The mother was represented by a solicitor

   e)11 September 2015 when the mother was directed to attend upon Dr P for the purpose of Family Report interviews on 29 September 2015. On that occasion an order restraining the mother from relocating the child’s residence outside South East Queensland was also made. There were difficulties with the Family Report interviews as discussed later in these Reasons and the mother did not fully participate, indeed she refused to do so. Furthermore, the mother relocated to New South Wales in February 2016 in breach of the injunction.

   f)20 October 2015[32] when the Independent Children’s Lawyer was ordered to issue a subpoena to the mother’s treating psychologist;

   [32] The mother was self-represented

   g)1 December 2015[33] when the parties were directed to attend upon Ms R or such other female Family Consultant at 9am on 25 January 2016. The purpose of the appointment was to reintroduce [X] to the father. A short report was ordered. The orders of 1 December 2015 also noted that the Independent Children’s Lawyer arranged another appointment between the mother and Dr P at the request of the mother. The interview date was 18 November 2015, however the mother did not attend the appointment and did not re-arrange the appointment;

   [33] The mother was self-represented

   h)12 February 2016[34] when a request pursuant to s.91B was made for the Queensland Department of Communities, Child Safety and Disability Services (“Qld DoCS”) to intervene;

   [34] The mother failed to appear

   i)1 March 2016[35] when the Independent Children’s Lawyer was granted liberty to apply to have the matter relisted if the mother’s location had been identified. This was the second occasion the mother did not appear in Court;

   [35] The mother failed to appear

   j)14 April 2016[36] when an order placing the child’s name on the Airport Watch List was made;

   [36] The mother failed to appear

   k)6 July 2016[37] when an order that any application seeking other relief designed to identify the whereabouts of the mother, if filed,  shall be listed ex parte and at short notice;

   [37] The mother failed to appear

   l)4 October 2016[38] when the matter was adjourned to 20 October 2016;

   m)20 October 2016[39] when an order directing the paternal grandmother to file an Application in a Case if she sought leave to intervene was made[40];

   n)15 December 2016[41] when the matter was transferred to the Parramatta Registry of this Court and the mother was ordered to personally appear before the Court on the next occasion;

   o)14 February 2017[42] when the parties were granted leave to file in chambers a short minute by consent for the preparation of an expert’s report and the mother was directed to file and serve a short updating affidavit by 24 March 2017. The mother did not file any such affidavit;

   p)30 May 2017 when orders were made in Chambers listing the matter on 2 June 2017 as due to technical  issues the Court was not able to facilitate a telephone link on 30 May 2017 for appearance by the father’s representatives and the Independent Children’s Lawyer;

   q)2 June 2017 when orders were made in Chambers vacating the directions’ listing once again due to technical issues with the matter being listed on 4 July 2017;

   r)4 July 2017[43] when an order discharging the Independent Children’s Lawyer from Queensland was made and an order for the appointment of an Independent Children’s Lawyer from New South Wales was made. Furthermore, an order for the preparation of a Family Report was made in the usual terms;

   s)1 September 2017[44] when an order directing the mother to file and serve within 14 days an updating affidavit in relation to [X]’s living arrangements, medical issues and other appropriate matters was made. The mother did file such an affidavit on 19 October 2017[45].  Leave was granted to the Independent Children’s Lawyer to send to chambers an agreed minute in respect of the preparation of an expert’s report if funding could be obtained for such a report from the Legal Aid Commission of New South Wales;

   t)1 May 2018 when orders were made in Chambers listing the matter for directions on 11 May 2018, following a memorandum received by the Court from Ms M a Regulation 7 Family Consultant in respect of the preparation of the Family Report as ordered by the Court on 4 July 2017. The mother did not attend the Family Report interviews and no report was consequently prepared.

   u)11 May 2018[46] when orders were made setting the matter down for final hearing on 13-15 June 2018. Trial directions were also made on the day for the preparation of the matter for final hearing.

   [38] The mother appeared by telephone, she was self-represented

   [39] The mother appeared by telephone, she was self-represented

   [40] Indeed it appears that the father filed an application in a case on 18 October 2016 seeking for the paternal grandmother to intervene and for a recovery order to issue for the return of the child to the paternal grandmother. It does not appear that the father ever sought an order for the return of the child to Queensland.

   [41] The mother appeared by telephone, she was self-represented

   [42] The mother was self-represented

   [43] The mother appeared by telephone, she was self-represented

   [44] The mother was represented by a solicitor

   [45] The affidavit was not relied upon at final hearing

   [46] The mother was represented by a solicitor who appeared by telephone

3. The mother did not attend Court on the first day of hearing. When the matter was first called, the mother’s Counsel sought for the matter to be stood in the list while her instructors tried to get in touch with the mother. The Court was told that there may be an application to withdraw made if the mother’s solicitors could not get in contact with the mother. During the course of the day the mother’s solicitor was able to obtain instructions from the mother, and the Court was told that her Counsel had managed to convince the mother to attend Court the following day. The matter was adjourned to 10am on 14 June 2018[47] and it was heard over the course of the next two days, concluding late on the second day of hearing.

   [47] The Court would not have been able to commence the hearing on 13 June 2018 in any event, as a part-heard matter had been listed on the same day with priority. The parties were advised of the listing of this matter as a reserve for the first two days when the matter was listed for final hearing on 11 May 2018.

The mother’s demeanour and evidence during the hearing

1. On the first day of hearing the mother sat behind her solicitor on the far side of the Court room to the father, who was being cross-examined. For much of the father’s cross-examination, the mother was visibly upset. She was crying, and at times she had her ears covered by her arms and was appearing to rock backwards and forwards. She left the Court room as she found the proceedings distressing and was not present for part of the father’s cross-examination.

2. The mother’s presentation on the second day of the hearing was much more settled, although she did start behaving in a similar manner as she had behaved on day one, towards the end of the hearing. During submissions she sat in the gallery next to her mother, sobbing and being consoled. She was also upset at the late hour to which the Court sat.

3. The mother gave confusing and contradictory evidence throughout the hearing. One example of this is the evidence relating to an incident in 2011 leading to mutual protection orders.

4. The father in his affidavit describes an incident which he said occurred in 2011, as a result of which the police applied for mutual protection orders naming each of the parties as the defendants and the protected persons. The father alleges that the mother mixed Valium and alcohol on a particular night, which resulted in the mother yelling, acting hysterically and physically assaulting him.

5. In cross-examination, the mother said that the parties had had a couple of drinks but they had not consumed too many drinks. She said not to the level of intoxication. She says she remembers the night well but not the way the father describes it.

   a)In cross-examination the mother said of this incident: “I was not prescribed Valium at that time at all. I was not prescribed Valium at all. I was not prescribed any medication.”

   b)The mother in her affidavit gave the following evidence:

   “For a long time I have experienced anxiety or “generalised anxiety” as described by my psychiatrist. I was initially diagnosed with this in 2001/2002. I had been prescribed medication to assist me with the management of my anxiety including Valium. When I first met Mr Randall, I was taking Valium from time to time when I needed it.”

   According to the mother, the parties met in 2011.

   c)The mutual protection orders were made in September 2011.

   d)The mother then went on to say:

   “I… deny those allegations about mixing alcohol with my medication. Throughout our relationship I did not drink alcohol to excess and mix it with my medication for my anxiety. Mr Randall made me flush it down the toilet because he believed I didn’t need it.”

6. The Court does not accept the mother’s evidence in cross-examination that as at September 2011 she was not taking Valium or that she was not prescribed any medication.

7. Wherever the two are in conflict, the Court prefers the evidence of the father to that of the mother for reasons which are apparent upon a full reading of these Reasons for Judgment.

Conclusion

1. The views of the child are unknown and given her tender age and complex needs any views expressed by the child would not have significant weight in relation to the Court’s determination.

2. As discussed earlier in these Reasons the times that the child has seen the father for Family Report interviews, albeit some time ago, was reported as a positive experience.

3. The child has not had the chance to have or build a relationship with the father or the extended paternal family and it is clear from the evidence of the mother and the maternal grandmother that this will continue to be the case if the child is to remain living with the mother. The father on the other hand will continue to facilitate a relationship with the child and the mother and her maternal family in a healthy and protected fashion.

4. Importantly, the evidence in this case about the child’s complex medical and behavioural issues is clear and it is clear that the father has not had the opportunity in participating in making decisions about the child’s treatment or any major issues relating to the child. This will continue to be the case if the child lives with the mother. Further, the mother has been inconsistent with treatment sought and received for the child which given her needs is a serious issue which ought to have had the father’s input.

5. The parties do live a significant distance apart, with the father residing in Queensland and the mother residing in New South Wales. However, the mother unilaterally relocated from Queensland to New South Wales with the child. There is nothing apparent on the evidence preventing the mother from moving closer to the child, except her stated fear of the father.

6. These proceedings are not about punishing the mother in any way, even though she may see it that way. They are about an objective determination on the available evidence as to what is in [X]’s best interest.

7. No doubt, [X] will have a period of adjustment when she moves to live with the father and it may be that she will always miss her mother. However, the Court finds that despite what the mother considers to have been her best efforts, she simply has not been able to meet [X]’s needs and consequently, [X] has missed out on a relationship with her father and the paternal family, and she has been exposed to parental behaviours which clearly lack insight. 

8. The father, the Court finds, is well prepared for what is to come.

Parental Responsibility

1. The relationship between the parents is simply not conducive of any real or meaningful co-operation, and the Court finds that the presumption of equal shared parental responsibility has been rebutted on the evidence.

2. As such, an order for the father to have sole parental responsibility will be made.

3. For all of these reasons orders as set out at the forefront of these Reasons for Judgment are in the child’s best interests.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 9 August 2018

a)   The unexplained failure by a party to give evidence or call witnesses, tender documents or other evidence, may, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case. The inference entitles the trier of fact to more readily draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or all the evidence;
b)   The rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference;
c)   The rule only applies when a party is required to explain or contradict something. No inference can be drawn unless evidence is given of facts requiring an answer. If there is no issue between the parties, there is nothing to answer;
d)   The rule cannot be applied where it would not have natural for the party to call the witness or the party might reasonably be expected to call a witness ie. a failure to call evidence which that party was plainly in a position to have given or called; and
e)   The evidence of the missing witness must be such as would have elucidated a matter.