REVIE & THOMAS
[2020] FamCA 67
•11 February 2020
FAMILY COURT OF AUSTRALIA
| REVIE & THOMAS | [2020] FamCA 67 |
| FAMILY LAW – CHILDREN – Best Interests – Where the mother seeks that she have sole parental responsibility, the child live with her and spend alternate weekends with the father – Where the father seeks that the child live with him in J Town and spend fortnightly time with the mother, supervised at a contact centre – Where the father alleges that the child is at risk of physical, psychological or sexual harm in the mother’s household – Where the father, at a final hearing in 2014, made similar allegations against the mother and these were not accepted by the trial judge – Where the father makes fresh allegations – Where the evidence does not support a finding that the mother poses an unacceptable risk of harm to the child – Where the father has caused the child to be repeatedly interviewed by the police and child safety and exposed the child to his fixed views about the mother and has caused the child emotional harm – Where the risk of future harm posed by the father can be ameliorated through restraints and the father undertaking therapy – Where the mother will have sole parental responsibility and the child will live with her and spend alternate weekends and half school holidays with the father. |
| Family Law Act 1975 (Cth) |
| Baghti & Baghtiand Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Bant & Clayton [2019] FamCAFC 198 Johnson & Page (2007) FLC 93-344 M & M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92-655 |
| APPLICANT: | Ms Revie |
| RESPONDENT: | Mr Thomas |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Ellis |
| FILE NUMBER: | BRC | 9853 | of | 2013 |
| DATE DELIVERED: | 11 February 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 9 - 10 December 2019 |
REPRESENTATION
| FOR THE APPLICANT: | Self-represented |
| FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr R. Cameron |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Raise Law |
It is ordered that:
All previous parenting orders be discharged.
The child X born … 2008 (“the child”) live with the mother.
The mother have sole parental responsibility for all major long term issues as that term is defined in s 4(1) of the Family Law Act 1975 (Cth).
The father spend time with the child at all such times as may be agreed and failing agreement as follows:
(a) PROVIDED that the father lives in the B Region, every second weekend from after school or 3.00pm Friday to before school or 9.00am AND where the Monday is a public holiday then to 9.00am Tuesday;
(b) IF the father lives outside the B Region then for one weekend every school term being the weekend closest to the midpoint of the term from after school or 3.00pm Friday to before school or 9.00am Monday AND where the Monday is a public holiday then to 9.00am Tuesday.
Despite any other provision in this Order, the child spend time with each of the parents as follows:
(a) On the weekend that Father’s Day falls, the child spend time with the father from 3.00pm Friday to before school Monday;
(b) On the weekend that Mother’s Day falls the child spend time with the mother from 3.00pm Friday to before school Monday;
(c) On the child’s birthday the parent who does not have the child may elect to either:
(i)Spend time with the child from 3.00pm until 5.00pm; or
(ii)Communicate with the child via Skype or telephone between 4.30 and 5.00pm;
(d) During the December/January school holiday period:
(i)In even numbered years with the mother for the first half and the father for the second half; and
(ii)In odd numbered years with the father for the first half and the mother for the second half.
For the purpose of the June/July, September/October and December/January school holiday periods, the school holiday time shall commence and conclude as follows:
(a) When a parent’s time falls in the first half of the holidays their time shall commence from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays; and
(b) When a parent’s time falls in the second half of the holidays their time shall commence from 5.00pm on the day calculated to represent half of the holidays and conclude at 9.00am on the day the school term commences.
Changeovers occur:
(a) On all school days at the child’s school; and
(b) On all non-school days at the McDonald’s restaurant closest to the midpoint between the parent’s residences.
The parents be at liberty to communicate with the child by telephone each Friday evening at 6.00pm with the parent who does not have the child initiating the call at that time and the other parent ensuring the child is available to take the call.
Therapeutic Interventions
The father within 14 days:
(a) Engage an appropriately qualified psychologist or therapist to assist him to come to terms with the decision as explained in the reasons for judgment of the Honourable Justice Carew dated 11 February 2020 and to understand the impact on the child of involving him in the father’s conflict with the mother; and
(b) Notify the mother and the independent children’s lawyer who that psychologist or therapist is; and
(c) Attend upon that psychologist/therapist with the frequency and duration as recommended by the psychologist/therapist.
The mother shall:
(a) Continue the child’s engagement with his current counsellor with the frequency and duration as recommended by the counsellor;
(b) Present the child consistently at all appointments as notified by the counsellor; and
(c) Keep the father informed of any proposal to cease such counselling.
The independent children’s lawyer forward to the psychologist/therapist for the father and the counsellor for the child a copy of the following court documents:
(a) The family report dated 13 May 2019;
(b) The psychiatric report dated 23 July 2019; and
(c) The reasons for judgment dated 11 February 2020.
The father be restrained from taking the child to the police or to the Department of Child Safety, Youth and Women OR from causing the child to be interviewed by a police officer or child safety officer without first notifying the mother by telephone and giving her the option to collect the child and take him to be interviewed or receiving her written consent to the child being so interviewed.
Travel
Each parent be required to give at least 4 weeks’ notice if intending to holiday with the child outside of Queensland and:
(a) Travel must be in school holiday periods;
(b) A copy of any flight details and itinerary must be produced to the other parent at least 2 weeks prior to travel; and
(c) Address and contact details must be given to the other parent at least 2 weeks prior to travel.
IT IS FURTHER ORDERED BY CONSENT
June/July and September/October school holidays
The child spend time with each parent during the June/July and September/October gazetted school holiday periods as follows:
(a) In even numbered years with the mother for the first half and the father for the second half;
(b) In odd numbered years with the father for the first half and the mother for the second half.
Commencement of school holidays
All school holidays be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the mother shall retain the additional night.
Exchange of information
This Order authorises the child’s respective medical centres to communicate with one another and exchange information regarding the child and any cost associated with that will be borne by the parents equally.
This Order is sufficient authority for the child’s school to give each parent information about the child’s education progress and other school related activities and supply to them copies of school reports, photographs, certificates and awards obtained by the child at the requesting party’s cost and both parents are at liberty to attend any school event such as parent teacher interviews, sports carnivals, and productions.
This Order is sufficient authority for any treating medical practitioner, specialist, allied health practitioner or dentist to release the child’s medical information to each party and for this purpose, both parents shall, as soon as reasonably practicable and at least at the next change over, inform the other of any medical condition, health issue or illness suffered by the child while the child is in their care and the name and contact number of any practitioner upon whom they have attended with the child.
Each parent immediately address any major illness or accident/injury and then forthwith notify the other, at least within two hours of any medical emergency involving the child that occurs whilst the child is in the parents’ respective care.
Restraints
During the time the child is with either parent, that parent shall:
(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b) Speak of the other parent respectfully and not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
(c) Not discuss adult issues/court proceedings with or in the presence or hearing of the child;
(d) Not use or be under the influence of alcohol during the time the child is in their care or 24 hours prior to such time;
(e) Ensure the child has his own bed to sleep in and that except when requested by the child, ensure the child sleeps in his own bed alone; and
(f) Not take photographs of the child with the intent to gather evidence.
NOTATION
A.While it has not been raised as an issue in the proceedings, it is noted that the parents have agreed not use or be under the influence or effect of illicit substances during the time the child is in their care or 24 hours prior to such time.
B.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
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 Revie & Thomas 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 BRISBANE |
FILE NUMBER: BRC 9853 of 2013
| Ms Revie |
Applicant
And
| Mr Thomas |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Ms Revie and Mr Thomas have one child together, a son called X, who is 11 years old. This is the second time the parent’s dispute about the child has proceeded to a final hearing. The child currently lives with his mother and spends alternate weekends with his father.
The matter returns to Court as a result of allegations made by the father that the child has been sexually and physically abused by the mother. The mother denies the allegations.
For the reasons which follow I find that the mother does not pose an unacceptable risk of harm to the child and the child will continue to live with the mother and spend alternate weekends with the father. I will also order that the mother have sole parental responsibility for major long term issues.
issues
The significant issues requiring determination were identified with the assistance of the parents and the independent children’s lawyer (“ICL”) and are as follows:
(1)Whether the mother poses an unacceptable risk of physical, psychological, or sexual harm to the child; and
(2)Whether the father poses an unacceptable risk of psychological harm to the child arising as a result of his belief that the child is at risk in the mother’s care and his consequent conduct including repeatedly making notifications to authorities and causing the child to be interviewed and/or examined.
On 28 August 2019, when this matter was set down for trial, the father’s allegations were also directed towards the mother’s adult daughters, at least in relation to physical abuse. It became apparent by the end of the trial that there was no evidence to support a finding that the mother’s daughters pose an unacceptable risk of harm to the child.
A third issue identified by the father on 28 August 2019 namely, whether or not the mother was abusing alcohol, was not pressed by the father. The father also alluded to another issue relating to the child having insect bites but this was not pressed either.
Proposals
The mother adopts the recommendations of the ICL that the child continue to live with her and spend alternate weekends with the father and that she have sole parental responsibility for major long term issues. Additionally, the mother seeks an order about requirements to be met prior to either parent travelling with the child outside Queensland.[1]
[1] The precise terms are set out in the mother’s Case Summary filed 6 December 2019.
The father proposes that the child live with him and that he be at liberty to relocate with the child to J Town. He further proposes that the mother spend supervised time with the child for no less than two hours each fortnight at a contact centre.[2] The father did not seek any order about parental responsibility should the child live with him.
[2] The precise terms are set out in the father’s Case Information filed 4 December 2019.
The ICL recommends that the child live with the mother and spend alternate weekends with the father and that the mother have sole parental responsibility.[3]
[3] The precise terms are set out in the ICL’s Case Outline filed 5 December 2019 with the addition of an order that the mother have sole parental responsibility for major long term issues.
Background
The mother and father were in a relationship from 2005 until 2012.
The mother is 50 and works full time for a retailer. She has two adult children from two previous relationships. Ms C is 34 and lives with the mother and the child in a rented property in E Town, a town about 1½ hours’ drive north of Brisbane. Ms D is 29 and lives nearby. Both daughters are employed.
The father is 49 and unemployed. He has no other children. The father has no permanent place to live. He has “a room” in F Town, a town about 3½ hours drive north west of Brisbane, or he stays with friends at G Town which is about a half hour drive from E Town. On some weekends when the child is spending time with him he has driven with the child to and from F Town. The father has previously lived in rental accommodation in the B Region.
On 2 February 2015 after a one day trial in June 2014, a Federal Circuit Court judge ordered that the child live in a week about arrangement (“the 2015 order”) which commenced a few months after the 2015 order when the father moved to the B Region and continued up until August 2019 (save for a period when the father refused to return the child to the mother in late 2018/early 2019). The 2015 order also provided for the parents to have equal shared parental responsibility.
On 26 August 2015 the father made allegations against the mother and caused the child to be interviewed by police. The mother was interviewed by police on 11 September 2015 and the police concluded that it was highly doubtful any offence had occurred. The Department of Child Safety, Youth and Women (“the Department”) also concluded that the child was not at risk of harm from the mother.
The child was again interviewed by police on 15 November 2018 at the father’s instigation. The mother was interviewed by police on 23 November 2018 and 20 December 2018. No further action was taken by police.
The father withheld the child and refused to return him to the mother from 16 November 2018 until an order was made for him to do so on 10 January 2019.
The child was again interviewed by police at the father’s instigation on 5 February 2019 and by Departmental officers at his school on 26 February 2019.
The police concluded that there was insufficient evidence to prove any criminal offence and the Department were not satisfied that the child was at risk from the mother.
On 21 August 2019, the 2015 order was discharged after an interim hearing and replaced with an order that the child live primarily with the mother and spend alternate weekends with the father. A prior interim order made on 14 May 2019 which, among other things, restrained the father from taking the child to police without the mother’s prior consent, was continued.
The father has long believed that the child is not safe with the mother. At the first trial the father alleged that the child was subjected to physical abuse and neglect in the mother’s household. The Court on that occasion found that the mother did not pose an unacceptable risk of harm to the child. The trial judge specifically found that black eyes sustained by the child were occasioned through accident and that the mother had not been neglectful of the child’s care or failed to appropriately manage insect bites. The trial judge found that the child had a close and loving relationship with each parent and extended family and found that the mother “ensured that [the child] continues his relationship with his paternal grandmother”. The trial judge found that the father “is not particularly attuned to [the child’s] emotional needs. He views [the child’s] needs from his own point of view, rather than [the child’s] point of view”. The trial judge further found:
73.Mr Thomas has, however, demonstrated a limited capacity to meet X’s emotional needs. I am driven to that conclusion by two matters. First, Mr Thomas ceased X’s time with Ms Revie. He did so without consultation with her, and he left it up to X to tell his mother that he would not be going back to her. Mr Thomas permitted X to tell Ms Revie over the telephone that he would not be returning to her. Ms Revie responded appropriately, I am satisfied, but when she spoke to Mr Thomas (in the same telephone call) he told her that it was X’s choice to stay with him.
74.Mr Thomas did not, I find, give any consideration to the effect upon X or his relationship with his mother and half-sisters by that decision. Whilst his motivation was arguably not misplaced, his actions demonstrated a willingness to put his own thoughts and ideas ahead of a reasoned decision made jointly with Ms Revie, and ahead of X’s relationship with his mother.
It remains common ground that the child has a close and loving relationship with the father and benefits from his relationship with him. They share an interest in machines and music.
The father continues to allege that there is an unacceptable risk of harm to the child from the mother and/or her daughters.
Before turning to consider the particular issues raised for determination in this case I set out below the applicable legal and statutory principles that guide my decision.
Applicable legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[4]
[4]Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
a)The person or persons with whom a child is to live;
b)The time a child is to spend with another person or other persons;
c)The communication a child is to have with another person or persons; and
d)The allocation of parental responsibility for a child.
The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, 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, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Family violence is defined in s 4AB and means 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. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
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”.[5] Where it is not possible to positively 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.[6] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”. [7]
[5] M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
[6] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.
[7] See Johnson & Page (2007) FLC 93-344, [68], [71].
The Full Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[8] and said:
[8] [2019] FamCAFC 198.
38.In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
39.It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
40.The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
151. …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
41.As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court went on to stress the importance of the whole of the evidence in assessing risk and said:
51. The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[9] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[10]
[9]Baghti & Baghtiand Ors [2015] FamCAFC 71.
[10]M & M (1988) 166 CLR 69.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).
Section 61DA 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 that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. 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.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[11]
Whether the mother poses an unacceptable risk of physical, psychological, or sexual harm to the child
[11]Banks & Banks (2015) FLC 93-637.
The father relied upon one affidavit to support his allegations and it was of limited assistance. The father declined to identify any paragraphs in earlier affidavits that might have been relevant to the issues in this case. The one affidavit relied upon raised some of the same allegations that were dismissed in the 2014 proceedings and the affidavit purports to set out parts of documents created by others, e.g. the Department, which may or may not be accurately represented.
As the matters alleged by the father are serious, I propose to do the best I can to identify relevant evidence and make appropriate findings.
2015 investigation
In relation to the particular allegations made by the father against the mother in 2015, the father does not state what the child said to him in 2015 that caused him to have the child interviewed by police on 26 August 2015. At this time the child was living in a week about arrangement.
What I can discern from other evidence is that on 25 August 2015 a notification was made to the Department expressing concern that the mother was sexually abusing the child. It seems likely that the notifier was the father as the father admits to having made a complaint at or about this time and to making a complaint to police on 26 August 2015 about possible physical and sexual abuse of the child by the mother. The father presented the child to police for interview on 26 August 2015.
During the police interview with the child, the child said he was there to “talk about mum”. The child initially spoke about his sisters and how they used to hit him but had not done so since the father moved to the B Region. He also said that his mother had told him he would get into trouble if he told his father what went on at his mother’s home. According to the police record, the child “did not discuss any touching during free narrative”. When prompted, the child said “Mummy is always touching my doodle and I want it to stop happening”. The child was unable to particularise any specific incident but stated in a general way that it happens when he gets out of the shower and his mother “pokes” the end of his doodle a number of times with her index finger. He said it only ever happened after his shower. He said his mother sometimes put powder on his penis when it was sore and that this happens after he tells her it is sore. The child said he had his own bed at each parent’s home and did not sleep with either parent. The child also said that he felt safe with the mother and significantly, the first person he nominated he could speak to if he felt scared was his mother.
After the interview, the father was informed by police that it appeared most likely that the mother may have been touching the child’s penis in order to apply powder or other treatment when the child complained of a sore penis. The police offered to organise a ‘pretext’ phone call (in which an attempt would be made to obtain admissions by the mother) but the father declined and said the mother was likely to deny any wrongdoing. The father was advised that there was insufficient information for the matter to proceed any further.
Nevertheless, on 11 September 2015 the mother was interviewed by police and said that she had applied cream to the child’s penis after he complained of it being itchy. When he complained about being bitten by insects she said she applied cream. She also said she applied powder to his penis and bottom area and that cream or powder were applied after his shower. The mother also said that she had recently discussed protective behaviours with her son and told him if anyone else touches him to tell her. The police records do not purport to quote the mother’s exact words.
The outcome of the police investigation is summarised in their records in the following terms:
At this time, investigations indicate it is highly doubtful this offence has occurred. There is nil evidence to indicate the touching of the child’s penis is an indecent act, it appears to be done to apply cream.
On 11 September 2015, when the father was informed of the outcome, he voiced concerns about the mother being interviewed and that the child would not tell him anything in the future. The father was given advice about continuing to go through protective behaviours with the child, and that if anything further should occur, it was hoped the child would feel comfortable telling another adult such as a teacher.
On 15 September 2015, the father spoke to the child’s grade one teacher, Ms H. The record from the child’s school establishes that the father initiated contact with Ms H and said the following:
[The father] spoke to me about concerns for X when he is with mum. He discussed worries about him being hit and yelled at but also about X’s mother touching him inappropriately. He said that he had involved the police and that X had spoken with a detective. I suggested that if X needed someone to talk to in the weeks he was with mum that he could come to me to talk if needed.
On a date subsequent to this conversation between the father and Ms H, in either September or October 2015, the child approached Ms H and said “I have to tell you something” and proceeded to tell her that he was concerned with things at home with his mother and that “she is making me do things” and that his mother put her leg in between his leg and he had to suck her nipple. During cross-examination, Ms H said she was quite distressed by what the child said but did not recall anything about the child’s presentation. In accordance with school protocol, Ms H informed her principal and a written form was completed and sent to the Department setting out what the child had said.
Ms H recalls that throughout his grade one year the child was always happy and appeared well cared for. She confirmed that the mother was a regular attendee at school to assist in the child’s reading class. Nothing of concern was noted by her other than what the child said to her as described.
There was a second notification received by the Department on 15 October 2015, the details of which are as follows:
·On 14th October 2015 X disclosed that his mother has been hurting him and calling him names.
·X stated that his mother hits him on the hand and calls him an idiot. He said she hits him every day twice.
·He then stated that she makes him suck her red bits on her boobies and put his knee between her legs rubbing until it gets smelly and then he has to have a shower.
·Sexual abuse does not appear to have occurred [redacted]. Physical is ongoing. X has been observed to have bruising on his legs from time to time.
·[redacted]
·It is believed that father has moved to the area in June 2015, from J Town or K Town.
·[redacted] concerns regarding [X’s] (sic) mother and suspected sexual abuse.
The identity of the notifier is redacted in the Departmental records produced to Court and no application was made by any party for un-redacted copies to be made available to the Court. The father concedes that he was in contact with the Department at around this time.
The child was interviewed by two child safety officers from the Department at his school on 27 October 2015 but nothing of any significance was disclosed by him.
During cross-examination the father conceded that during an interview with child safety officers on 29 October 2015 he said that the mother lies and that the child had marks on him that look like cigarette burns. The father said during cross-examination that he was not intending to allege the mother was burning the child, just that the marks resembled cigarette burns. That seems unlikely and is perhaps indicative of the father’s propensity to exaggerate the basis for his concerns.
The assessment by the Department is expressed in their records as follows:
The concerns are complicated by the fact that there is no strong evidence of sexual abuse, X does not seem to have made a clear disclosure and there are no other strong indicators such as sexualised behaviours with other children. From what the notifier has stated the concern is based on X stating that he and Ms Revie share “huggies” and due to an observation of X’s behaviour [redacted] no problem sexual behaviour with other children has been observed or reported.
There is only one prior child concern report for this family in 2014 outlining concerns that Ms Revie was not responding appropriate to sand-fly bites [redacted]. There is no clear pattern of inappropriate parenting behaviour or concerning reports of X presenting with unusual or differing behaviours which may indicate harm.
[redacted] As there is currently insufficient information to suggest that X is at an unacceptable risk of harm due to sexual abuse by Ms Revie [redacted] a child concern report will be recorded at this time.
The outcome by the Department was that the complaint was unsubstantiated and the child was assessed to be not in need of protection. Both parents were assessed to be willing and able to protect the child.
2018 investigation
While the father does not set out the details of any relevant conversations he had with the child in 2018, he does set out in his affidavit a list of what he describes as ‘disclosures’ allegedly made to him by the child on 13 November 2018 as follows: (as per original)
28. 13/11/2018 X made the following disclosures to me
a. He always sleeps in Ms Revies bed
b. Ms Revie sleeps in a light nightgown with nothing underneath
c. She cuddles him her hand goes from his stomach to his inner thigh with her thumb at the base of his penis
d. She rolls her legs backwards and forwards and moves her knees in and out with X's bottom against her crutch
e. He say's he usually falls asleep while this is going on every night
f. This behaviour happens nearly every night
g. His mother can never find out or she will smack him with the wooden spoon, take his hat so he can't play at school and take all of his toys and give them to his sister to sell
h. Stated that all of these things happened when he reported Ms Revie Touching his penis previously
i. Complained that Ms Revie always walks in on him in the shower and in his room when he is naked
j. Stated he is verbally abused and sworn at daily
The father provided a statement to police on 5 February 2019 in which he provided a number of details relevant to the statements attributed by him to the child in November 2018. The initial part of his statement addresses issues to do with the child having bites and his speculation that the source of the problem is the mother’s home. Although quite lengthy, it is important to set out relevant parts of the statement, particularly given the very limited evidence relied upon by the father in support of his case: (as per original)
…
9.On the 9th of November 2018, I picked X up from school. He was covered in bites. He said his mother took the bombs and hid them. I took some photos of the bites.
10.On the 13th of November 2018, I had the photos out so I could take more pictures similar to the ones I had previously taken. I asked X about the sleeping arrangements. I can’t remember the exact wording he used, but I later made notes about what he said. I can provide a copy of these notes.
11.I know he told me that his mother sleeps in a light nightgown with nothing underneath. That she cuddles him and her hand goes from his stomach to his inner thigh with her thumb at the base of his penis. She roles her legs backwards and forwards and moves her knees in and out with X’s bottom against her crutch. He said that he usually falls asleep while this is going on. He said that it happens nearly every night. I asked him if he could repeat this to a person in the future. X was visibly shaken, his voice went weak and quiet. He looked extremely frightened and he said his mother can never find out or she will smack him with the wooden spoon, take his hat so he can’t play at school and take his toys and give them to his sister to sell. X also complained about his mother always walking in on him in the shower and in his room when he is naked.
12.I later went and reported this to Police. On the 15th of November 2018, X participated in an interview with Detective Senior Constable L.
13.After the interview, I put in an application for full custody and refused to return X back into his mother’s care.
14.The Order went to court on the 14th day of December 2018. Due to the case still being open on that date, the Judge verbally awarded full custody to me until it could be finalised. It then went back to Court on the 10th day of January 2019. I didn’t have enough information about the case, so the judge awarded a 3 week adjustment and then fifty fifty custody. So I returned X to Ms Revie’s care on the 11th day of January 2019. He stayed in her care for 3 weeks and then came back into my care on Friday the 1st of February 2019 at 3pm.
15.X told me on the Friday afternoon, that if he says anything to anyone about what happens at her house, Ms Revie was going to take his guitar off him.
16.On that Friday I took more photos of his bites. I am able to produce these photos.
17.The next day, I was at home with X. X was playing his xbox and I was loading the photos of his bites onto the computer. I’m not allowed to talk to him about court, but when I’m doing things like taking photos he seems to know something is happening and that is usually when he discloses things to me.
18.I was sitting on the couch and he was sitting on the floor playing xbox. I had the computer on the coffee table. X had a look at what I was doing.
19.We started talking about the bites. X said that he wasn’t happy having them. X said to me, ‘I know you are trying to help me Dad.’ I can’t remember the exact words he used, but he then said something like, ‘Mum said if I tell anyone what happens at her house that she’s going to take my guitar and I’ll never see it again.’
20.X seemed to be upset about that. I know how much he loves his guitar.
21.X then disclosed to me that on the Wednesday she put things on his bed, I think he said boxes and toys so that he couldn’t sleep in his own bed and had to sleep with her.
22.I asked him, ‘Did she do that thing where she moves her legs around while you were in the bed?’
23.X said, ‘No that didn’t happen.’
24.We might have talked a little bit more, but then he disclosed.
25.X said, ‘When mum does that, she grabs my penis.’
26.I asked him, ‘Can you remember how long this has been going on for?’
27.X said, ‘I don’t know, it’s been going on for a long time, I can’t remember when it started.’
28.I said, ‘What 18 months, 2 years?’
29.X said, ‘I don’t know.’
30.I said, ‘How come you haven’t said anything about this before?’
31.X said, ‘After the first interview, after I got beaten she told me if I told anyone that she touches my penis she was going to cut it off.’
32.I asked him, ‘When she rubs her crutch on your bottom, can you smell anything?’
33.He said, ‘Yeah dad.’
34.I said, ‘Do you know what it smells like?’
35.X said, ‘No. For some reason I think green. I can’t describe the smell. Is that important?’
36.I said, ‘Anything like that, that is odd or different when this is happening to you could become important.’
37.I said to X, ‘Have a think about what it smells like and see if you can come up with anything that it smells like.’
38.X mentioned that his bottom gets damp when she rolls her legs on him. I can’t remember what exact words he used to tell me that.
39.That is pretty much all I managed to get from him.
…
41.I picked X up from School later that day and asked him, ‘Are you okay to do an interview with Ms O? She’s the lady that interviewed you when your mother was shaking your penis.’
42.X said, ‘Yeah I’m alright with that dad.’
43.I told him, ‘well you can be interviewed tomorrow morning before school if that’s alright?’
44.X said, ‘Yeah I’m fine with that dad.’
…
The child was re-interviewed by police on 15 November 2018. The child said he had been having some problems at his mother’s home. After the last time he spoke to the police, the child said that the mother had hit him with her hand and a wooden spoon. He said that his mother always finds an excuse for him to sleep in her bed rather than his own and that she snuggles up behind him, reaching over him and touches him near to or on the top of his penis. He said that his mother always wears a thin nightie and moves her legs around, back and forward which annoyed him. He said she did not touch his penis directly or put her hand under his pants. He said he had never slept in his own bed at his mother’s home because there were always boxes and things on it.
The father retained the child and kept him home from school as a result of the statements made by the child. During this time the father enrolled the child in a school in M Town, approximately five hours from the child’s school.
The mother was interviewed by police on 23 November 2018 and denied the allegations she had harmed the child and in particular that she had inappropriately touched of the child.
The father attended the police station again on 11 December 2018 and expressed disappointment at the outcome of the police investigation to date. The father was informed that there was insufficient evidence of any indecent acts by the mother and there was no prospect of a successful criminal prosecution. The father told police that he expected the Court to order the child to be returned to the mother on 19 December 2018 for her to molest him again and for him to live in filthy conditions. The police officer informed the father that when he attended the mother’s residence her house seemed very clean and tidy.
The Court did not order the return of the child to the mother on 19 December 2018 pending further investigation of the father’s allegations.
On 20 December 2018, the mother took part in a recorded interview with police. The mother admitted sleeping with the child occasionally. She said they were in the process of moving house and the child’s bedroom had been used to store boxes so he slept with her. She said she cuddled him but at no time intentionally touched his penis or any area around his genitals. She described lying behind him on her side and sliding a hand around under the top of his waist and the bottom of his waist to cuddle him.
The outcome of the police investigation is expressed as follows:
Police are unable to corroborate the disclosures made by X. The disclosures of themselves do not as such prove the elements of indecent treatment of a child. X has described how the mother touched the upper thigh area and near where ‘my penis starts’. This matches the description the mother gave in the way she cuddled her son.
The matter will be filed pending any new information. Police do not have any further evidence to support any offending against X.
It is significant that the child is repeatedly photographed by the father when arriving from his mother’s home and exposed to the father’s evidence gathering behaviours. It is also significant that the father questions the child and suggests details which support the father’s conclusion that abuse is occurring. It is also significant that the father describes the mother’s home as “filthy” yet the police officer who attended at her home describes it as “very clean and tidy”. This may well be another example of the father’s propensity to exaggerate if not lie in order to support his theories of abuse.
2019 investigation
On 4 February 2019, the father informed police that the child had made further ‘disclosures’. The child was interviewed for a third time by police on 5 February 2019. During the interview the child said that he sometimes has to sleep with his mother because she has things on his bed. He said that his mother has put her hand in his boxer shorts and touched his penis and that she rubs her legs up and down his legs and moves them in and out. He said she rubs her crotch on his bottom and it makes his bottom damp and smells. He said a couple of weeks ago his mother put her hands around his “ball sack” and “squished” it. He said the time before that she had touched his penis area with her hand inside his boxer shorts and rubbed her crotch against his bottom and it got damp and stank like “green limey sort of colour”. She moved her legs up and down his legs.
The child was interviewed by child safety officers from the Department at his school on 26 February 2019. The child largely repeated the things said to police on 5 February 2019. The Department records indicate:
He was unable to particularise into the disclosure, he did not provide any rich contextual information which would indicate he was recalling a memory or lived experience, rather a repetition of the above.
On 5 March 2019, the mother attended the police station but became so upset that a referral was offered for her to see someone but she declined stating that she was already seeing someone. The mother declined a formal interview. The police records note that when interviewed on 20 December 2018 the mother denied any inappropriate touching.
The father was notified on 6 March 2019 that there was insufficient evidence for criminal prosecution.
On 28 March 2019, the father again attended the police station in what is described as a “mildly intoxicated state”. The father said he was upset with the outcome and wanted police to take further action. The father alleged that the abuse was still occurring and that the child had disclosed to him on 27 February 2019 similar things to that disclosed by the child during the interview at the child’s school on 26 February 2019. The father accused the mother of lying and said he believed the police should do more. The difficulties of a criminal prosecution were explained to the father and he was referred to the Department. The father said he would attend upon the Department but that they were as “useless” as the police. The Department’s records conclude:
This has been clearly an acrimonious separation between the parents with allegations being repeatedly made alleging that the mother is harming the child. There have been two investigations, both unsubstantiated harms, child not in need of protection. The first one was completed on 16/11/2015 and the second one on 23/03/2019.
…
[The Department and Queensland Police Service] thoroughly investigated allegations. Multiple interviews were completed, notes compared, both parents were interviewed and information was collated. There was nil evidence in support of the allegations. It was explained that there are also a number of monitors and feedback mechanising surrounding X in the form of a safety and support network that give the Department confidence that his wellbeing is not being compromised at this time.
The current notifier has highlighted a significant issue, that of possible harm to a child when unfounded allegations of harm … are repeatedly made. If the allegations continue, consideration should be given to raising a notification based on emotional harm to the child because of the allegations made. …
It seems patently clear that the Department is referring to the father’s emotional harm of the child in the last paragraph.
At around this time the mother arranged for the child to see the chaplain at school because he was experiencing some emotional upset. There is no evidence of any notification made to the Department as a result of any interaction between the child and the chaplain.
On 31 March 2019, the father requested that the police attend his home and speak with the child about bruises the child had allegedly received from the mother. Police records reflect that the child told police that he had been doing his homework when the mother got angry at him about something so he went outside and the mother grabbed him by the back of the shirt, put her hands around his neck and sat him back down. The police observed small faded bruises, about 1 inch in diameter on the child’s abdomen and torso/chest. The records note that the “[the child’s] bruising has faded considerably and were almost non-existant (sic) when police attended”. The police considered that the level of fading which had occurred in the 4 days since the alleged incident indicated that the bruises were “probably superficial”. The father informed police that he had taken photographs of the bruising.
On 3 April 2019, the child approached the school chaplain walking through the school and said he had more to share about his mother claiming that she has harmed him. The chaplain’s notes record that the child stated clearly to him that “his dad had told him to see me so after he discloses to me what his mum has done I will report it”. The child also mentioned he had bruises in the past, although none presently and indicated on his body where they had been.
On 1 May 2019, the father contacted the chaplain asking that he see the child because of his anxiety. The chaplain briefly spoke to the child in the playground but the child did not provide any basis for feeling anxious other than someone making a lot of noise around him.
During the trial, despite saying he had photos of bruises on the child, the father did not produce them. The father did not provide any evidence nor cross-examine the mother about any allegation of her physically abusing the child.
Conclusion about abuse
It is important to recognise that the task I am undertaking is about risk assessment. The fact that no criminal charges were brought against the mother does not resolve the issue of risk. The investigations undertaken by the Department concluded that the child was not at risk from the mother. The Department’s conclusion, while relevant, does not bind this Court. The role of this Court is to review all relevant evidence and to assess the magnitude of any risk based upon that evidence. Importantly, each parent has had the opportunity to test the accuracy and reliability of all of the evidence before the Court and each parent and the ICL has had the opportunity to address the Court about the evidence and what orders will best meet the needs of the child.
The father drew the Court’s attention to three matters in particular:
a)Inconsistencies in what the mother told police about the reasons for her applying cream to the child’s penis;
b)The mother’s admission that she initially told the Department that she never slept with the child when she did; and
c)The reason there was a time gap in disclosures by the child was because the mother had beaten the child when he first made disclosures and threatened him.
In relation to the first matter, I am not persuaded that there is any inconsistency. It seems that cream was applied if the child’s penis was sore or itchy. Whether that was because of insect bites or for some other reason, there was a reasonable explanation offered. I also note that the police records do not purport to quote the mother’s exact words but provide a summary of what she told them.
As to the second matter, the child himself has given various accounts of the sleeping arrangements at his mother’s home. It seems these arrangements have changed from time to time. Sometimes the child and mother shared a bed for various reasons. Sometimes the child slept in his own bed. Again, the record from the Department does not purport to quote the mother’s exact words. The relevant part of the record is that the mother said the child never sleeps in her bed and the next sentence says he does not stay in her bed. I am not persuaded that this record or the mother’s apparent admission is significant.
As to the last matter, it is not entirely clear what particular time period the father was referring to but the father says in his affidavit (as per original):
99. 27/03/2019 Wednesday afternoon Ms Revie’s verbal abuse got worse than usual at approximately 4.30 X walked out of the house he had enough and was trying to run away again Ms Revie grabbed him by the collar of his shirt and lifted it upwards making it extremely difficult for X to breathe He states he was trying to yell stop the whole way back to the house and that his voice was not very loud. In the house he was hit on the back left hand side of his body below the ribs i have a photo of the bruise . he was told not to tell anyone or bad things will happen to him. He was locked in his room after an hour he left his room only to be dragged back in the same manner as before once in his room he was thrown against the bed Ms Revie yelled at him “don’t even think about it”
The father did not produce any photograph of the alleged bruising. As noted above, the father arranged for the child to be further interviewed by police. No action was taken against the mother. The father also says he took the child to the doctor but not until 3 April 2019. There is no evidence from the doctor, in particular no evidence to corroborate the father’s allegation that the child was beaten by the mother.
If the father is referring to the gap between 2015 and 2018 I note that the child told police in the interview on 15 November 2018 that he had been hit by the mother with her hand and a wooden spoon after the last interview (I note that the child’s first s 93A police interview occurred on 26 August 2015). The father suggested that the child’s demeanour changed at that point of the interview suggesting that the child’s ‘disclosure’ was truthful. Upon review of the s93A video recording I note that when the child is asked why he is at the police station he looks down, speaks more quietly and becomes quite fidgety. The child says he is there to talk about “what happens at mum’s place”. It is possible that the child responds in that way because he is recalling something unpleasant that the mother has done but his demeanour is equally consistent with the child demonstrating the pressure he is feeling in having to make repeated statements to police about his mother.
It must be acknowledged that the child has made statements that could possibly indicate abuse of a sexual nature by the mother and physical discipline that might amount to abuse. However, in assessing the magnitude of any risk I must consider the evidence as a whole and not just the statements by the child. In considering the evidence as a whole, an important factor is the context in which the statements have been made.
It is clear that the father has long held suspicions about the mother harming the child and the father (even on his own material) has engaged the child in question and answer sessions (sometimes suggesting the answers) and exposed the child to his own negative views about the mother. He has also repeatedly photographed the child for the purpose of ‘proving’ that the mother has harmed or neglected the child. The child has been present when the father has been working on his case against the mother. There can be no doubt that the child is aware of the father’s views that the mother has harmed the child. The father has also made it clear to the child that he wants him to tell others about the alleged abuse. The combination of these factors is likely to have influenced the statements made by the child i.e. the father has created an expectation for the child that he should say negative things about the mother and the child has adopted certain suggestions made by the father.
Another factor that I have taken into account in assessing the magnitude of the risk is the father’s response to suggestions that what the child has described may have an innocent explanation. The father refused to accept even the possibility of explanations other than abuse even though reasonable explanations are open e.g. that the mother applied cream or powder to the child’s sore penis. The family report writer, Ms N’, assessment that the father “presents as unable or unwilling to consider any information that does not fit with his own view”, accords with my own assessment of him.
Another factor is the father’s propensity to exaggerate or mislead. For example, the father intimated to the Department that the child had been burned by cigarettes when it is common ground that the child had been bitten by insects. Additionally, the father told police that the child lived in filthy conditions in the mother’s home when the independent evidence is to the contrary. The father also maintained his allegations against the mother’s daughters despite the lack of evidence to support his assertions. To be clear, I do not regard the child’s statement to police in 2015 where he mentioned his sisters hitting him in the past as supporting the father’s current allegations. In addition, one of the child’s sisters was cross-examined by the father and denied allegations against herself, her sister, and her mother.
Yet another factor is the independent evidence from the school that establishes that no spontaneous statement was made by the child to teachers or the chaplain. Rather the father instructed the child to make ‘disclosures’.
I also note that the school has had ample opportunity to observe the mother at the school and no concerns have arisen about her interaction with the child. The child has good relationships with teachers at school. He has been seeing the chaplain at school regularly since February 2019. The child is doing very well at school. The child has attended the same primary school since 2015 and there is no evidence that the school has had any cause for concern about the child at all (other than the statement made by the child to Ms H).
The conclusions by police and the Department are of course an additional factor.
Having considered the evidence as a whole I am not satisfied that the mother poses an unacceptable risk of future harm to the child.
Whether the father poses an unacceptable risk of psychological harm to the child arising as a result of his belief that the child is at risk in the mother’s care and his consequent conduct including repeatedly making notifications to authorities and causing the child to be interviewed and/or examined
The father has instigated repeated interviews of the child by authorities which may well be abusive in themselves. The child could be in no doubt that the father holds a poor opinion of the mother and that she is in some way harming the child. The child has developed an awareness about when the father is working on his case against the mother, e.g. uploading photographs of the child with insect bites onto his computer, and it is at those times and with encouragement and questioning from the father that the child has made the types of statements already identified in these reasons. The father’s behaviours are likely to have caused some emotional or psychological harm to the child and for that reason I propose to order that the child’s counselling continue.
While there is a very real risk i.e. an unacceptable risk of the father continuing to cause harm to the child because of his fixed views about the mother, which have continued almost unabated for many years, I consider that a number of factors ameliorate the risk of future harm.
Firstly, the father gave repeated assurances that he would accept the findings of the Court and move on with his life. Secondly, in order to assist the father to abide by this assurance, I intend to restrain him from:
a)Taking the child to police or the Department or causing the child to be interviewed without the mother’s prior consent;
b)Taking photographs of the child for the purpose of gathering evidence; and
c)Questioning the child about any alleged harm caused by the mother or her daughters.
Thirdly, while I would generally be loath to order a person to undertake therapy, it being generally accepted that a person needs to voluntarily engage for therapy to be successful, I consider that the father will be assisted by therapy focussed upon helping him to understand the need to change his approach and to understand the damage that he is causing the child by his attitudes and evidence gathering behaviours.
I note that despite the father’s conduct, neither the mother nor the ICL seek to reduce the time the child currently spends with the father nor for that time to be supervised.
What parenting order is proper?
The father’s proposal to remove the child from the mother’s care and move to J Town would involve significant upheaval and uncertainty for the child. The relationship between the mother and child and between the child and his half-sisters would dramatically change in that his time with them would be necessarily limited to holidays. Despite the considerable age difference the child was assessed to have a close and loving relationship with his half-sisters by the family report writer.
Currently the child is well settled and has attended the same school since commencing school in 2015 where he is doing well.
I accept Ms N’ opinion that the child will be more likely to maintain a meaningful relationship with both parents if he remains living with the mother. This is demonstrated in part by the mother continuing to support the child’s ongoing relationship with the father despite the continued allegations made against her and her daughters. Ms N was impressed by the mother’s ability to identify positives in the child’s relationship with the father.
If the father elects to remain in the B Region a return to week about would be possible from a practical perspective but in my view there has already been enough upheaval in the child’s life and I do not intend to impose further change. Perhaps more importantly, there is a greater risk of emotional and psychological harm to the child the longer he spends with the father. If the child lives primarily with the mother, the father will have a reduced ability to adversely influence the child against the mother. The risk of the child “becoming aligned with his father and less connected and more alienated with his mother” will be reduced if his time with the father is limited to alternate weekends and holidays.
The father will also need time to consider and come to terms with the outcome of these proceedings and, with assistance, to understand the damage his conduct has caused to the child in the past.
Ms N also opined that the parents do not co-parent but rather they “parallel parent”, which creates a difficulty for the child who has to constantly make adjustments between the households. The child is “attuned to his parents’ opinions of each other”. I accept Ms N’ opinions.
Overall it is in the child’s best interests to remain in the primary care of the mother. I come to this conclusion despite the child’s wishes to spend more time with the father. The child is still very young and has been exposed to the father’s very fixed views about the mother. I am not satisfied that the child’s expressed wishes to Ms N are an accurate reflection of his true views and I accept Ms N’ assessment in this regard.
If the father remains living in the B Region he should continue to spend alternate weekends with the child but not to transport him to F Town on those weekends. The travel involved is too extensive for a weekend. While staying with friends during time the child spends with the father would not be problematic if it occurred infrequently I do not consider it to be in the child’s best interests for that to occur regularly. The child needs to experience his father’s home when spending time with him not to be inconveniencing the father’s friends in some ad hoc arrangement. The father has previously rented in the B Region and it seems likely that he would do so again if he remains there. If the father elects to move to J Town then the child’s time with the father will of necessity be limited to holidays and perhaps a weekend per term as proposed by the ICL and adopted by the mother.
The parents have a long history of being unable to make joint decisions including about schooling. Historically, the father has twice withheld the child from the mother for extended periods and even enrolled the child in another school without consultation. The parents have now had two parenting trials in which the father has made numerous allegations that the mother is harming the child. According to the family report writer, Ms N, there continues to be distrust between the parents and they cannot communicate openly. The father’s attitude to the mother “is angry and this is a deep seated and long-standing position. He presents as resenting when she does not comply with his views and wishes.” I accept her opinion. I do not consider it would be in the child’s best interests for the parents to have equal shared parental responsibility. As the child will be living primarily with the mother I propose to order that she have sole parental responsibility for major long term issues. I expect that the mother will inform the father of the decisions and take into account any views he expresses but I do not see a need to include any order to that effect. As the mother will have sole parental responsibility I do not see the need to make an order, as sought by the ICL, restraining the parents from changing the residence of the child or from enrolling the child in school. This order seemed to be directed towards the father given his past conduct. As the father will not have parental responsibility for major long term issues he will not have the right to make decisions about where the child lives or where he goes to school.
The parents indicated their preparedness to agree to certain orders irrespective of where the child lived and that will be reflected in the order I make.
To the extent the parents did not agree on minor issues I have determined those matters in the manner I consider will best meet the child’s needs.
Although the parents agreed to be restrained from using or being affected by illicit substances while the child is in their care or 24 hours prior thereto I do not propose to include that as an order because it may give the impression that the Court condones that activity at other times. I will however include a notation that the parents have agreed not to do so.
The ICL recommended that the final order include a requirement for each parent to undertake a post separation parenting program. Each parent has already done so and I do not see any utility in requiring them to repeat the exercise.
While I was not taken to any evidence relating to the order sought by the mother in respect of travel, no submissions were made against such an order and it appears to be benign in its terms. Accordingly, I will include the provisions sought by the mother.
The ICL recommended that the December/January school holidays be taken week about only for the first four weeks. There were no submissions explaining why such an order should be made. I note that the 2015 order envisaged that if the father lived more than 35 kilometres from the child’s school then the child should spend one half of the school holidays with the father. In the absence of any submission or evidence to support the proposed limitation on the child’s time with the father I propose to provide for the holidays to be shared equally between the parents.
While I would not of my own accord impose a number of the restraints on the parents as they and the ICL all seek, I will do so because all parties consent to that course.
Conclusion
In this matter I have determined that the mother does not pose an unacceptable risk of harm to the child, as alleged by the father. The child will continue to live with the mother.
While the father does pose an unacceptable risk of psychological or emotional harm to the child I have determined that the risk of harm can be ameliorated by imposing a number of personal restraints on the father and requiring him to undertake therapy to help him come to terms with this decision and recognise the damage he has caused to the child.
It is not in the child’s best interests for the parents to have equal shared parental responsibility. As the child will continue to live with the mother she will have sole parental responsibility for making decisions about major long term issues.
I certify that the preceding one-hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 11 February 2020.
Associate:
Date: 11.02.2020
Key Legal Topics
Areas of Law
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Civil Procedure
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Insolvency
Legal Concepts
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Appeal
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Jurisdiction
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Abuse of Process
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Stay of Proceedings
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Costs
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