Ridley and Ridley (No 2)

[2020] FamCA 549

FAMILY COURT OF AUSTRALIA

RIDLEY & RIDLEY (NO. 2) [2020] FamCA 549

FAMILY LAW – CHILDREN – Best interests – With whom the child shall live and spend time – Where final parenting orders were made by consent in 2016 providing for the subject child to live with the father and spend time with the mother – Where the father commenced fresh proceedings in July 2019 after notification by the child welfare authority of the alleged risk of harm posed to the child by the mother’s partner – Where interim orders were made in September 2019 providing for the mother to spend professionally supervised time with the child and restrained her from allowing any contact or communication between the partner and the child – Where the father seeks to retain the child’s residence and for the mother to spend limited professionally supervised time with the child – Where the mother sought a reversal of the child’s residence – Where the father’s proposal is broadly supported by the Independent Children’s Lawyer and the Family Consultant’s recommendations – Where physical, psychological and sexual abuse is alleged within the mother’s household – Where the mother alleges physical abuse of the child in the father’s care – Where the available evidence fails to establish the child is at an unacceptable risk of physical or psychological harm by her subjection to physical abuse in either household – Where evidence of possible sexual abuse of a child by the mother’s partner in conjunction with the partner’s behaviour towards the subject child tends to be consistent with the partner “grooming” the child for sexual abuse – Where the evidence establishes the mother’s partner poses an unacceptable risk of harm to the child – Where the father poses no risk of harm to the child – Where both parents have a loving relationship with the child, from which she does and should derive benefit – Where the child does not derive the full benefit of her relationship with the mother because she is pre-occupied with pleasing the mother – Where the father offers the child a better chance of emotional stability and retention of meaningful relationships with both parents – Ordered the child live with the father – Where the child will spend time with the mother at the home of the maternal grandparents on six occasions each year – Where the mother is restrained from allowing the child to come into contact or communicate with her partner.

FAMILY LAW – CHILDREN – Parental responsibility – Where both parties seek an order for sole parental responsibility – Where the presumption of equal shared parental responsibility is rebutted – Where the Family Consultant recommends the father have sole parental responsibility for the child – Where the child shall remain living with the father – Where sole parental responsibility in respect of all “major long-term issues” is allocated to the father as the residential parent.

Evidence Act 1995 (Cth) ss 89, 140
Family Law Act 1975 (Cth) Pt VII, ss 4(1), 60CA, 60CC(2), 60CC(3), 61B, 61DA(2), 61DA(4), 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

A v A (1998) FLC 92-800
Johnson and Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Nikolakis & Nikolakis [2010] FamCAFC 52
Palmer v The Queen (1998) 193 CLR 1
Partington & Cade (No. 2) (2009) FLC 93-422
Ridley & Ridley (No. 2) [2015] FamCA 1122
ZP v PS (1994) 181 CLR 639

APPLICANT: Mr Ridley

RESPONDENT: Ms Ridley

INDEPENDENT CHILDREN’S LAWYER: Sharon Moore Solicitor

FILE NUMBER: NCC 2245 of 2012

DATE DELIVERED: 20 July 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 30, 31 June & 1, 2 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ticehurst

SOLICITOR FOR THE APPLICANT: Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT: Mr Bates

SOLICITOR FOR THE RESPONDENT: Merridy Elphick Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sharon Moore Solicitor

Orders

1. All former orders relating to the child M, born … 2010, are discharged.

2. The father shall have sole parental responsibility in respect of all “major long-term issues” for the child.

3. The child shall live with the father.

4. The parties shall take all reasonable steps to ensure the child spends time with the mother:

   (a)for two consecutive days from 8.00 pm on the second Friday until 8.00 pm on the second Sunday of August, October, December, February, April and June each year; and

   (b)from 5.00 pm on 26 December until 5.00 pm on 28 December each year.

5. For the purpose of implementing Orders 3 and 4 hereof:

   (a)the father or his agent shall cause the child’s delivery to the maternal grandparents at their home at AA Street, BB Town, NSW at the commencement of the time the child is to spend with the mother; and

   (b)the mother or her agent shall cause the child’s delivery to the father at his home at CC Street, Suburb DD, NSW at the conclusion of the time the child spends with her.

6. The parties shall take all reasonable steps to ensure the child communicates by telephone with the mother at the following times for no more than 15 minutes, for which purpose the mother shall telephone the child on the telephone number provided to her by the father and the father shall ensure the child is able to receive the mother’s calls on that number at that time:

   (a)each Tuesday at 7.00 pm;

   (b)on the child’s birthday at 7.00pm; and

   (c)on Mother’s Day at 7.00 pm.

7. The mother is restrained from:

   (a)entering upon or approaching within 100 metres of any school attended by the child or any venue attended by the child for sport or other extra-curricular activity.

   (b)communicating with the child in any manner other than as provided by Order 6 hereof.

   (c)causing or allowing the child to come into personal contact with, to remain in the company of, or to communicate in any way with Mr F.

8. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

9. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

10. The father shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the child.

11. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number and email address.

12. Leave is granted to the parties to provide a copy of these orders and the associated reasons for judgment to the maternal grandparents.

13. Leave is granted to the parties to provide a copy of these orders to the principal of any school attended by the child.

14. Within seven days hereof the father shall cause the child to be delivered to the Director of Child Dispute Services at the registry of the Family Court of Australia to have explained to her the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16. The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.

17. Costs are reserved for 28 days.

18. Any and all other outstanding applications are dismissed.

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 Ridley & Ridley 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 NEWCASTLE

FILE NUMBER: NCC 2245 of 2012

Mr Ridley

Applicant

And

Ms Ridley

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings represent another chapter in the parties’ long-running dispute over their daughter, who is now aged 10 years.

2. The last orders made between the parties to conclude their dispute under Part VII of the Family Law Act 1975 (Cth) (“the Act”) were made with their consent in November 2016, when they agreed to have equal shared parental responsibility for the child, for the child to live with the father, and for the child to spend time with the mother.

3. In July 2019, the father was alerted by the NSW Department of Communities and Justice (“the Department”) to the alleged risk of harm to which the child was exposed in the mother’s household. The mother’s partner was the alleged source of the risk. In reaction to that notification, the father immediately commenced these proceedings seeking to adapt the child’s care arrangements, but to essentially ensure the child is kept away from the mother’s partner.

4. The mother joined the proceedings and responded in August 2019. She sought to fundamentally re-structure the existing arrangements by reversing the child’s residence. She has three younger children with her partner, intends maintaining her relationship with him, and disbelieves he poses any risk of harm to the child.

5. As the following reasons explain, there is no warrant to change the child’s primary residence with the father, but the child needs protection from the risk of harm to which she is exposed by the mother’s partner.

Evidence

1. The father relied upon:

   a)his affidavit filed on 18 May 2020 (the annexures to which were separately tendered[1]);

   b)the affidavit of his partner, Ms R, filed on 19 May 2020 (the annexures to which were separately tendered[2]); and

   c)tendered documents.[3]

   [1] Exhibit F1

   [2] Exhibit F2

   [3] Exhibits F3, F4, F5, F6

2. The mother relied upon:

   a)her affidavit filed on 18 May 2020;

   b)the affidavit of her partner, Mr F, filed on 18 May 2020;

   c)the affidavit of the maternal grandfather filed on 18 May 2020;

   d)the affidavit of the maternal grandmother filed on 18 May 2020; and

   e)tendered documents.[4]

   [4] Exhibit X1

3. The parties and the Independent Children’s Lawyer (“the ICL”) also relied upon:

   a)the Magellan Report, dated 28 August 2019, furnished to the Court by the Department;

   b)the Family Report, dated 20 December 2019, prepared by the Family Consultant; and

   c)tendered documents.[5]

   [5] Exhibit ICL1

Background

1. The child was born in 2010 and the parties separated in October 2011.

2. The first proceedings between the parties under Part VII of the Act were concluded in December 2014. At that time the parties agreed upon orders for them to have equal shared parental responsibility, for the child to live with the mother, and for the child to spend time with the father.

3. Almost immediately, the parties fell into dispute about the implementation of the orders, with the father commencing contravention proceedings against the mother. That dispute was resolved by a second set of final parenting orders being made in June 2015, again with the parties’ consent. The orders again provided for the parties to have equal shared parental responsibility, for the child to live with the mother, and for the child to spend time with the father.

4. Within three months, the father again commenced contravention proceedings against the mother, and shortly afterwards, he filed a fresh application for revised parenting orders. In December 2015, interim parenting orders were made and ex tempore reasons given (Ridley & Ridley (No. 2) [2015] FamCA 1122) to suspend all prior orders and to instead provide for the father to have sole parental responsibility, for the child to live with him, and for the child to spend time with the mother (initially under professional supervision at a contact centre).

5. The child has lived with the father ever since those interim parenting orders were made, but the proceedings were not finalised until November 2016 when final orders were made, again with the parties’ consent. The orders provided for the parties to have equal shared parental responsibility, for the child to live with the father, and for the child to spend time with the mother.

6. These current proceedings – effectively the fourth set – were commenced by the father in July 2019. He instituted the proceedings when told by the Department that there was an ongoing investigation into Mr F’s alleged sexual abuse of another child (who was then unidentified) and the Department held concerns about the child’s contact with Mr F when spending time with the mother.

7. In September 2019, given the unresolved allegations of sexual abuse and their denial by the mother and Mr F, Cleary J made interim orders which only enabled the child to spend time with the mother under professional supervision and restrained her from allowing the child to have any form of contact or communication with Mr F.

8. In February 2020, the proceedings were listed for trial in June 2020.

9. The father seeks to retain the child’s residence and sole parental responsibility for her, but to restrict the child’s interaction with the mother because he distrusts the mother’s willingness and capacity to abide by an order restraining her from bringing the child into contact with Mr F. He proposes that the child only spend professionally supervised time with the mother on eight occasions each year.

10. The father’s application enjoyed the broad support of the ICL.

11. The Family Consultant also recommended that the child continue to live with the father and that he retain sole parental responsibility for her.

12. On the other hand, the mother proposed that the child should instead live with her and that she should have sole parental responsibility for the child. She intends to continue living with Mr F and their three children, expecting the child will move to integrate and live in that family group. She refutes that Mr F poses any risk of harm to the child or to her other three younger children. The mother proposed orders for the child to spend time with the father, but slightly less time than the child currently spends with her.

13. The parties’ reciprocal allegations of the risks of harm to which the child is exposed in their respective care are integral to the resolution of the dispute.

Alleged risks of harm

Physical abuse

1. Mr F has two older children from a former relationship – S (aged 13 years) and T (aged 12 years).

2. The mother commenced a de facto relationship with Mr F in about April 2012.[6] S lived with Mr F (and hence the mother) in the last school term of 2015, but returned to live with his mother in early 2016, when he alleged he was physically abused by Mr F.[7]

   [6] Mother’s affidavit, para 6

   [7] Family Report, paras 83, 149

3. The particulars of the allegations were that Mr F had punched, choked, kicked and hit him over preceding years. At that time, S’s mother also alleged Mr F had struck S with a wooden spoon years before, when he was only three years of age, causing bruising to his body. S’s mother was able to show photographs of the bruising to the Department at the time.[8]

   [8] Family Report, para 150; Exhibit F6, page 13

4. Mr F denied the allegations when they were raised with him in 2016 and the complaint was resolved by Mr F relinquishing any future interaction with either S or T in return for the dismissal of the apprehended violence order issued against him for S’s protection. Mr F’s forfeiture of his sons was momentous, because he had only just before instituted proceedings in January 2016 seeking orders for their residence.[9] In fulfilment of that deal, the application to convert the apprehended violence order from an interim to a final order was withdrawn and dismissed, family law orders were consensually made to effectively eliminate Mr F from his sons’ lives, and Mr F has not seen or heard from either of them since February 2016.[10]

   [9] Mr F’s affidavit, para 28

   [10] Family Report, para 84; Mr F’s affidavit, paras 26, 34, 35

5. Mr F continued to deny those allegations of physical abuse in these proceedings[11] and the mother does not doubt his veracity. She reported to the Family Consultant she had never seen Mr F physically abuse either of his sons and she has “no concerns whatsoever” about Mr F’s parenting capacity.[12] She gave evidence to the same effect.[13]

   [11] Family Report, para 151; Mr F’s affidavit, para 31

   [12] Family Report, paras 50, 152

   [13] Mother’s affidavit, para 42

6. The evidence is certainly insufficient to prove, to the requisite civil standard (under s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)), that Mr F physically abused S, though that is not the end of the inquiry because the father contended the evidence was still sufficiently persuasive to establish an unacceptable risk that the child might be treated by Mr F in the same way he might have treated S, in which event she needs protection from the physical or psychological harm she would suffer from subjection to such abuse.

7. Any finding of unacceptable risk is necessarily a forecast and such risk may be established by evidence even when it is insufficiently strong to prove past abusive behaviour when measured against the civil standard of proof (M v M (1988) 166 CLR 69 at 76-77). The mere possibility of past abuse may of itself be sufficient to establish the unacceptable risk of future abuse (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No. 2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page (2007) FLC 93-344 at [68], [71], [76]-[77]), but that finding always depends upon the probative value of the evidence. The same principles apply whether the risk is said to arise from sexual or physical abuse (A v A (1998) FLC 92-800 at 84,994-84,996).

8. Here, the evidence of Mr F’s past physical abuse of S is limited. S’s mother had photographs of the injury allegedly inflicted by Mr F to S when he was an infant in about 2009 or 2010, but no action was taken against Mr F at that time and there is no explanation for why. The strongest inference is that the authorities did not consider the evidence was probative enough to prosecute Mr F for an offence. The photographs were not tendered in evidence in these proceedings. The allegations made in early 2016 were made by S himself, but were contemporaneously denied by Mr F. While the police applied for and obtained an interim apprehended violence order against Mr F for S’s protection, no criminal prosecution ensued.[14]

   [14] Mr F’s affidavit, para 32

9. The bargain struck by Mr F with S’s mother and the authorities at that time for him to relinquish all forms of interaction with both sons does evoke some suspicion of his consciousness of guilt and his motivation to avoid the adverse repercussions of his criminal prosecution and a final apprehended violence order being made against him. Mr F gave up very easily on his sons and the forfeiture of all contact with them seems a disproportionately severe solution if he truly denied any misconduct, particularly when he regards the loss of his relationship with his sons to be “devastating”.[15] Nonetheless, the inference of such a craven motive is not strong enough to outweigh other evidence: S’s allegations of abuse were not corroborated by any evidence of recent injury, which might reasonably be expected if he was punched, choked and kicked; Mr F denied the allegations, which denial he defended in cross-examination; and the mother did not witness any physical abuse of S in their household, when it is likely she would have if it extended over a prolonged period.

   [15] Mother’s affidavit, para 55

1. Of course, the ultimate question is what, if any, risk of harm confronts the child; not whether Mr F assaulted S. There was no evidence at all of Mr F mistreating the child. On the contrary, the evidence established a curiously intimate relationship between them, which is yet to be addressed.

2. On the available evidence, the father failed to establish the child is at an unacceptable risk of physical or psychological harm by reason of her subjection to physical abuse by Mr F. It may be fairly imputed the father accedes to that finding and does not regard the risk to be particularly compelling. He consented to the final parenting orders made in November 2016, enabling the child to spend time with the mother without any restraint upon her interaction with Mr F, in full knowledge of the allegations of physical abuse made by S earlier in the year. The Family Report prepared for those proceedings in 2016 comprehensively summarised the allegations. I reject the father’s evidence in these proceedings that he would not have agreed to those orders if he had known the full extent of the allegations.[16] He was impelled to admit in cross-examination he was then well aware of the allegations. If the father did not rely upon such evidence to prove the child’s risk of exposure to harm by Mr F in 2016, he cannot persuasively do so now.

   [16] Father’s affidavit, para 55

3. Conversely, an issue arose in the proceedings about a similar risk of harm to the child by her subjection to physical abuse in the father’s household.

4. The mother told the Family Consultant that the father “physically disciplines” the child and that the child is scared of the father.[17] The mother expressed an allied concern that the child was also exposed to the risk of harm by a paternal uncle because of his alleged propensity for “violence and criminality”,[18] but she abandoned her concern about the uncle at trial and it need not be separately addressed.

   [17] Family Report, para 30

   [18] Family Report, para 47

5. Dealing with the evidence concerning the father, he admits he has smacked the child twice – once in 2016 and again in October 2018.[19] He discussed the second of those incidents with the Family Consultant. His embarrassment at such behaviour caused him to seek advice from the child’s counsellor about how to manage such situations better and he is clearly contrite.[20]

   [19] Father’s affidavit, paras 98-109

   [20] Family Report, para 157

6. The mother adduced evidence about the father administering physical discipline to the child much more broadly,[21] but such evidence was exclusively based on reports made to her by the child. The mother said the child told her that on one recent occasion when the father smacked her she was left with “a massive red mark”, which the child allegedly photographed.[22] The mother did not tender any such photograph in evidence to corroborate the child’s allegation, so the child’s reports remain uncorroborated.

   [21] Mother’s affidavit, paras 96-101

   [22] Mother’s affidavit, para 105

7. The mother deposed she honestly believes the child’s reports of the father’s violence towards her,[23] which is incongruent with her admission to the Family Consultant that the child “exaggerates negative things about [the father] to get [her] approval”,[24] which admission she apparently repeated throughout the interview.[25] If the mother knows of the child’s propensity to exaggerate, it must follow she cannot afford to repose so much trust in her word.

   [23] Mother’s affidavit, paras 113, 154

   [24] Family Report, para 44

   [25] Family Report, para 222

8. Numerous independent examples of the child’s mendacity and exaggeration prove her unreliability and why it is unwise to unconditionally accept, as truthful and accurate, her uncorroborated reports, including these:

   a)in November 2018, the child told her school staff that the father punched and hurt her, but when pressed she clarified it was not a punch but “a movement when the father was putting on her seatbelt”;[26]

   b)in November 2018, the child reported the father smacked her on the bottom but, simultaneously, she described feeling “happy and safe” with the father and Ms R;[27]

   c)in March 2019, the child told her school staff that Ms R threatens to “chop her arms off”;[28]

   d)in March 2019, the child told her school staff that the father “punches, teases, bullies and yells at her”,[29] but the school records did not contain any information which would tend to verify her complaint (such as any notation of her physical injury or anxious psychological state) which one would expect to exist if the allegation of a grown man repeatedly punching a nine year old girl was being taken seriously by the school;

   e)in November 2019, the child told the Family Consultant she “accidently [sic]” told her friend the father was “touching [her] inappropriately”,[30] which was overheard by an after-school care teacher. When the Family Consultant sought clarification, the child explained the father had brushed his arm down her chest when they were walking into a shop, though it was a frequent occurrence. Inferentially, the Family Consultant did not believe her representation amounted to any allegation of sexual impropriety because the child appeared “unaffected”;[31] and

   f)in March 2020, the father had to physically restrain the child when she was angry and misbehaving. The child’s lip was grazed in the struggle. The child alleged to the father he had punched her, which he denied. The child reported the incident to the mother.[32] The incident was also reported to the Department anonymously.[33] The reporter alleged he or she was an eye witness to the event, but the father denies that was possible and believes the report was actually made by the mother after speaking with the child by telephone. Regardless, the incident was investigated and dismissed by the Department after the child was interviewed. The Department’s records reveal the child told her school teachers the small cut on her lip was sustained accidentally, she gave the Department an identical benign version to that given by the father, and the father did not hinder the investigation in any way.[34] In cross-examination, the mother conceded the two versions of that event given by the child – one to her and the other to the Department – were irreconcilable and it was “possible” the child exaggerated the version given to her.

   [26] Family Report, para 154

   [27] Family Report, para 154

   [28] Family Report, para 156

   [29] Family Report, para 156

   [30] Family Report, para 184; Exhibit M1, pages 116, 117

   [31] Family Report, para 185

   [32] Father’s affidavit, paras 111-126; Mother’s affidavit, paras 107-112

   [33] Exhibit M1, pages 101-105; Father’s affidavit, para 126

   [34] Exhibit M1, page 103; Exhibit ICL1, page 3

9. According to the mother’s evidence-in-chief, she heard no allegation of any physical discipline against the father from the child before November 2018,[35] which tallies with a report made to the Department (presumably by the mother) in November 2018 that the child had not made any such allegation before then.[36]

   [35] Mother’s affidavit, para 102

   [36] Family Report, para 154

10. It is unlikely the child’s reports about the father’s physical discipline or abuse are true, save for their correlation with the father’s admission of having smacked her twice. More likely, the child’s reports are fabricated or exaggerated in an effort to aid her return to live with the mother. The evidence does not establish the child is at any risk of physical or psychological harm by reason of her subjection to physical abuse by the father, which was eventually admitted by the mother’s counsel.

Sexual abuse

1. S alleges he has been sexually abused by Mr F. His allegations were historic, because he has not seen Mr F since February 2016.

2. S made the allegations in May 2019 – initially to relatives,[37] but then to a medical professional shortly afterwards.[38] The allegations were passed on to the police,[39] but were later reported to the police by S personally in greater detail in July 2019[40] and September 2019.[41]

   [37] Exhibit M1, pages 36-38

   [38] Exhibit F6, page 43

   [39] Exhibit F6, page 43

   [40] Exhibit F6, pages 13, 44

   [41] Exhibit F5, pages 105-107

3. S’s allegations of sexual abuse were regarded as “creditable [sic]” and were substantiated by the Department “within the balance of probability [sic]” in July 2019,[42] whereupon Mr F was informed by the Department he would be recorded in the departmental records as a “person causing harm”.[43] Mr F denied he was specifically told that then, both in his affidavit[44] and in cross-examination, but his denial is rejected. It is unlikely he could have recalled the conversation in complete and accurate detail when he prepared his affidavit some nine months later, or when he gave evidence at trial, and he conceded he was at least told he would “appear on a working with children’s police check”.

   [42] Exhibit F6, pages 7, 13

   [43] Family Report, paras 28, 146; Exhibit F6, page 43

   [44] Mr F’s affidavit, para 55

4. Confusingly though, the Department’s records are not all ostensibly compatible. The Department conducted a “safety assessment” in August 2019 and concluded the “outcome” was “safe”, which assessment of safety apparently related to the child, who lives with the father, and not the three young children who live with the mother and Mr F.[45] The mother has, perhaps understandably, taken that to mean an official conclusion has been reached by the authorities that Mr F poses “a very low” or even no risk of harm to any child,[46] but that is not necessarily so.

   [45] Magellan Report, pages 6-7

   [46] Family Report, para 40; Mother’s affidavit, para 48

5. The Magellan Report compiled in late August 2019 reported that a further “risk assessment” (which must be different from a “safety assessment”) was yet to be completed, so the investigation remained open.[47] The “risk assessment” was subsequently completed by the Department in September 2019 and was tendered in evidence. It notes the final risk assessment level is “high”.[48]

   [47] Magellan Report, page 7

   [48] Exhibit F6, pages 70-77

6. The Department eventually wrote to the mother in November 2019 advising that the child protection investigation into the safety of her three young children was “closed”.[49]

   [49] Family Report, para 148, Annexure A; Mother’s affidavit, para 54

7. There is no obvious reason to explain the apparent anomalies in the Department records, which are confusing and unsatisfactory. Either Mr F poses a sexual threat to children or he does not, but the Department’s official opinion (whatever it might actually be) is not dispositive of that issue in these proceedings. It is the province of the Court to independently determine, on all of the available evidence, whether Mr F poses an unacceptable risk of harm to the child by subjecting her to sexual abuse.

8. Mr F denies having sexually abused S[50] and, notably, he has not been prosecuted with any criminal charge.[51] However, that may only be because S does not wish to engage as a witness in a criminal trial; not because the police consider they lack the evidence to prosecute charges successfully.[52]

   [50] Family Report, para 142; Mr F’s affidavit, para 61

   [51] Mr F’s affidavit, para 60

   [52] Father’s affidavit, para 40; Exhibit F6, page 45

9. In August 2019, on legal advice, Mr F declined the chance to comment upon or to participate in an interview with police concerning S’s allegations.[53] It was his prerogative to decline an interview or the chance to comment, but he thereby eschewed the first available opportunity to ascertain the specific details of the allegations, squarely confront them, and particularise his denial. Mr F and the mother imply their dissatisfaction about not knowing the details of the allegations before trial,[54] but he could have ascertained them had he volunteered to be interviewed about them.

   [53] Family Report, paras 92, 141; Mr F’s affidavit, para 55

   [54] Mr F’s affidavit, para 59; Mother’s affidavit, paras 46, 55

10. No unfavourable inference of consciousness of guilt could be drawn against Mr F for his silence if any criminal proceedings ever eventuate, but the same impediment does not apply in civil proceedings such as these (s 89 of the Evidence Act). Nevertheless, Mr F did not rely upon his privilege against self-incrimination to avoid giving evidence in these proceedings. He deposed to his denial of the allegations in his affidavit, exposed himself to cross-examination, and adhered to his denial. It would be unfair to draw an adverse inference against Mr F for choosing not to respond to the allegations when they were first raised with him in August 2019.

11. The maternal family strongly defend Mr F against the allegations. The mother refuses to accept the allegations could be true and the maternal grandparents, even though they could not know, told the Family Consultant that Mr F had “never been inappropriate” with anyone and they “trust” him.[55] The maternal grandmother even implied S’s allegations should be given no credence at all because he is “a sick little boy”.[56] The mother admitted in cross-examination that she “discredited” S’s allegations because he was “unwell”. However, cross-examination revealed: the maternal grandfather was ignorant of S’s prior allegations of physical abuse in 2016; and the mother and both the maternal grandparents were unaware that the Department had substantiated S’s allegations of sexual abuse in 2019.

    [55] Family Report, paras 100, 103

    [56] Family Report, para 100

12. S’s emotional and behavioural disturbance is the genesis of the comments about him being “sick” and “unwell”, but he has apparently been tested for the behavioural and cognitive conditions which Mr F and the maternal family suspect explain his disturbance and the tests have “indicated that S does not suffer from any specific condition”.[57] Rather, the available evidence is just as consistent with S’s aberrant behaviour being caused by his deviant treatment by Mr F as it is with his aberrant behaviour causing him to make spurious allegations against Mr F.[58] The mother conceded in cross-examination she had read documents produced on subpoena by the Department which noted how S’s misbehaviour escalated at or about the times he visited Mr F.

    [57] Family Report, para 143

    [58] Family Report, paras 144, 145

13. There is a poignant question posed by the evidence which Mr F and the maternal family could not rationally answer: why would S make such heinous allegations against Mr F more than three years after he ceased having any contact with him at all unless they are broadly true?

14. That is not a question which could be posed in any criminal proceedings, because it would tend to reverse the onus of proof borne by the prosecution – by implicitly requiring the accused to advance a motive to explain why the complainant’s allegations are false in order to avoid conviction (Palmer v The Queen (1998) 193 CLR 1). But there is no impediment to the question being posed in civil proceedings like these, where the Court is obliged to evaluate the evidence to determine whether some risk of harm is posed to a child and how that risk may affect the child’s best interests, which is the paramount consideration. Proceedings under Part VII of the Act are not disputes inter partes in the ordinary sense of that expression because the Court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647).

15. Feasibly, S may dislike Mr F so intensely that he still wants to cause trouble for him by fabricating the allegations of sexual abuse, but that seems improbable since there would be no obvious reciprocal advantage for him. Allowing for the Department’s independent belief in the integrity of his allegations,[59] there is a stronger inference: the allegations are true, S has acquired some extra maturity in the last few years, and he felt the urge to unburden his conscience of such a terrible secret in the knowledge that there is now much less chance of him experiencing any reprisal from Mr F. The Department noted S is “unlikely to be at future risk of harm from [Mr F]” because they have had no contact for three years.[60] Mr F said in cross-examination he does not know where S lives and he was even unaware S was taken into foster care in July 2019.

    [59] Family Report, para 144

    [60] Exhibit F6, page 40

16. While the inference that S’s allegations are true is both available and attractive, it is still insufficiently persuasive to prove the allegations against Mr F to the requisite civil standard, taking into account the provisions of s 140(2)(c) of the Evidence Act. It is, however, still a consideration which affects questions about the existence and quantification of risk.

17. In asserting that Mr F poses a risk of harm to the child by her subjection to sexual abuse, the father did not rely upon only the evidence about Mr F’s possible sexual abuse of S. The father additionally relied upon evidence about the curious aspects of Mr F’s behaviour with the child. He contends the strength of his case derives from the evidence in aggregation.

18. Allegations were first made to the Department in 2017 about Mr F potentially “grooming” the child for sexual abuse.[61] The mother believes the father made the report,[62] though Ms R admits it was her.[63] However, the reliability of the allegations could not be doubted simply because they were made by Ms R or the father. Ms R said she was told other reports were made around the same time,[64] which is consistent with the father’s evidence of being independently approached by the child’s teacher and school counsellor about the child’s sexualised behaviour.[65] The father said in cross-examination that those approaches occurred about 12 to 18 months apart.

    [61] Family Report, paras 28, 119; Exhibit M1, pages 23-25; Exhibit F5, page 31

    [62] Mother’s affidavit, para 33

    [63] Ms R’s affidavit, para 143

    [64] Ms R’s affidavit, para 144

    [65] Father’s affidavit, paras 50, 51

19. Before discussing the relevant evidence, it is instructive to explain the meaning of “grooming”, by quoting the Family Consultant:

    209.The act of sexual assault commonly involves an element of ‘grooming’. Grooming is a tactic which involves a subtle, escalating process of establishing trust with an intended child victim and then seeking to desensitise that child to sexual conduct. The violation of boundaries is an important element in the grooming process and may include acts such as showering or dressing with a child. Offenders often desensitise a child to touch by beginning with non-sexual touching such as tickling or stroking, before progressing to sexual touching.

    210.Grooming can involve behaviours that may not seem to be inappropriate. This enables offenders to groom others, and the environment, as other adults will commonly defend their behaviour as ‘innocent’ acts. Grooming the environment can often involve offenders referring to past/current or intended victims as “liars”, or unstable, problematic children, to discredit any disclosures and generate an environment of disbelief around the child. Grooming creates opportunities for offenders to progress to acts of abuse.

20. Aspects of Mr F’s behaviour with the child over the last few years bear some similarity with and are at least capable of being construed as “grooming”, assuming the allegations about the nature of his behaviour are true.

21. The child was alleged to be showering with Mr F, even though she was then seven years of age.[66] The mother and Mr F told the Department then, and gave evidence in these proceedings, that the child stopped showering with Mr F some years beforehand. Such evidence could be true, so it is discarded as a relevant consideration. There was no satisfactory basis upon which to reject their evidence out of hand.

    [66] Family Report, para 120

22. However, there was more. The child was then supposedly acting in a sexualised way, she drew sexualised images, and she was participating in play called “tickle time” with Mr F.[67]

    [67] Family Report, para 73

1. The child’s sexualised behaviour involved trying to place her hands down the father’s pants near his crotch, placing an object against her own crotch, rubbing Ms R’s pubic bone, and drawing pictures of “breasts and penises”.[68]

   [68] Family Report, para 124; Father’s affidavit, para 53.4; Ms R’s affidavit, paras 131, 133, 138

2. The “tickle time” the child described enjoying with Mr F involved having her back scratched or rubbed, which was observed to gratify the child to such an extent that her eyes rolled back in her head, and having her stomach rubbed “down to her pubic line”.[69]

   [69] Family Report, para 121; Father’s affidavit, para 53.1; Ms R’s affidavit, para 135

3. The mother and Mr F told the Family Consultant and gave evidence-in-chief of how the innocent routine of Mr F rubbing the child’s back, in the presence of them both, was being misconstrued.[70] Their evidence must, however, be evaluated in light of other known evidence. When the allegation was first raised with the mother in 2017, she told the Department she knew nothing at all of “tickle time” and the child told her counsellor in 2016 that the mother was not involved in the activity because she was in a different room when Mr F “tickled” her.[71] In cross-examination, the mother and Mr F both said the child’s report to the counsellor about the mother not being involved in “tickle time” must be false, but such evidence attracts little weight. The contemporaneous records carry greater probative weight.

   [70] Mother’s affidavit, paras 15-17; Mr F’s affidavit, para 47

   [71] Family Report, para 123

4. In 2017, according to the Department’s Magellan Report, the risk posed by Mr F was assessed to be “low” and the allegations were not substantiated.[72] However, there is again an element of inconsistency about the Department’s records. The records produced on subpoena, inspected by the Family Consultant, reveal the Department staff found that some of the child’s behaviours were “odd” and suspicion was entertained that the child was “withholding some information” and “something might be happening”, which the mother was told at the time.[73] In cross-examination, the mother denied being told of that at the time, but I reject her evidence on that point. Ms R deposed, without challenge, that the Department staff told her they were certain Mr F was grooming the child,[74] so it is more probably correct the mother was also informed of the Department’s suspicion, as the Department’s records confirm.

   [72] Magellan Report, page 4

   [73] Family Report, paras 127, 128

   [74] Ms R’s affidavit, para 145

5. Even though the mother was expressly informed in 2017 of the Department’s lingering suspicion, and despite Mr F being on notice that the nature of his personal interaction with the child was the subject of interest, no steps appear to have been taken by either of them to modify their conduct. Mr F still fosters a curiously close relationship with the child and the mother apparently harbours no doubts about the propriety of it. The Family Consultant said, and I accept:[75]

   …It is … disquieting that [Mr F’s] interactions with [the child] have continued to raise concern, even after his behaviour endured scrutiny by child protection services in 2017.

   [75] Family Report, para 213

6. The mother and Mr F live on a property in rural NSW. When the child visited the mother before the interim orders were made in September 2019, the mother apparently sometimes allowed the child to go unaccompanied with Mr F to the property.[76] The father confirmed, in his affidavit and later in cross-examination, it last happened in July 2019,[77] just before the interim injunction was made to restrain the child’s contact with Mr F.

   [76] Family Report, para 134; Ms R’s affidavit, para 98

   [77] Father’s affidavit, para 217

7. At changeovers, Mr F kissed the child on the lips, even though he must have known it remained a matter of concern to the father.[78] There was no need for Mr F to greet or farewell the child with that kind of intimacy. Even if the form of kiss was entirely innocent, as it was described by the mother and Mr F to the Family Consultant and in their evidence,[79] it is puzzling why Mr F would persist when it was a known source of irritation and suspicion.

   [78] Family Report, para 125; Father’s affidavit, para 53.3

   [79] Mother’s affidavit, paras 18-19; Mr F’s affidavit, paras 49-51; Family Report, para 132

8. Mr F has written personal letters to the child several times, with the mother’s knowledge and approval.[80] The father cannot withhold the letters from the child because the mother and Mr F inform her the letters have been sent so she expects to receive them.[81] The mother and Mr F passed the practice off, both to the Family Consultant and in their evidence, as an innocent way of letting the child feel connected with and supported by them.[82] Despite their explanation, it seems peculiar that the correspondent was Mr F rather than the mother. The mother said the father objected to her corresponding with the child,[83] but the father denied that in cross-examination. During her cross-examination, the mother admitted she wanted the child to think she received “special mail” from Mr F. Even in a supervised contact visit as recently as March 2020, the mother permitted the child to write Mr F a “letter in a love heart”.[84] In cross-examination, the Family Consultant said she was “concerned” to hear that evidence and, further, the mother was naïve in the way she facilitated written communication between the child and Mr F, which opinion evidence is accepted as being correct.

   [80] Family Report, paras 95, 133; Father’s affidavit, paras 57, 58; Exhibit F1, pages 89-93

   [81] Family Report, para 131

   [82] Mother’s affidavit, paras 22-23; Mr F’s affidavit, para 66

   [83] Family Report, para 133

   [84] Exhibit F6, page 49

9. In September 2017, Mr F drove from his property to the child’s school to attend a Father’s Day event.[85] The Family Consultant said that particular incident occurred in 2018, but the father confirmed in cross-examination it occurred in a prior year and that Mr F attended a different Father’s Day event in 2018. There is no evidence that the father was consulted about it beforehand.

   [85] Family Report, paras 61, 134

10. In September 2018, Mr F drove from his property to attend a Father’s Day event at the child’s community group meeting, notwithstanding the father’s presence.[86] Again, the father was not consulted. The father said he missed a telephone call from Mr F about a week before, to which he responded by leaving a message for Mr F to correspond by email, which he did not do. Whether Mr F called the father about the upcoming event remains unknown.

    [86] Father’s affidavit, para 62

11. The mother said in cross-examination the child had invited Mr F to both events, but he only attended one, which Mr F confirmed. Even if Mr F did only attend one event, it remains curious. On either occasion, he drove nearly three hours in each direction to attend an event for fathers held in the country town where the child then lived with the father.

12. In December 2018, the father bought the child an iPod, which she took with her on a visit to the mother. When the child returned home, the photographs of the child in the father’s home were deleted and replaced by photographs of the child in the mother’s home. Most notably, the photograph loaded into the iPod as the child’s screen-saver graphic was a photograph of Mr F.[87] The father agreed in cross-examination the child could have done that herself, but she told the father and Ms R that Mr F had done it for her.[88] Mr F admitted in cross-examination loading the photographs, but he denied deleting any photographs and he could not remember whether he set the screen-saver. The mother admitted in cross-examination that Mr F air-dropped the photographs onto the iPod and set the photograph of him as the screen-saver graphic, but she said she was unaware of other photographs being deleted.

    [87] Family Report, para 76

    [88] Father’s affidavit, para 63; Ms R’s affidavit, para 100

13. Even if the mother and Mr F do not regard the level of Mr F’s intervention in the child’s life as presumptuous and excessive, the perception of him over-stepping his role is well founded.[89] The normalisation of that situation by the mother and Mr F is rejected as distorted.

    [89] Family Report, paras 76, 134

14. The situation was reached where it almost seemed the child’s relationships with the parties were subordinated to the importance of her relationship with Mr F. The child described her feelings in these terms to the Family Consultant:[90]

    I’m really close to him. He’s always treated me like I’m his child… It’s like he’s my real dad.

    [90] Family Report, para 175

15. The Family Consultant did not observe the child in Mr F’s company in December 2019 because of the interim injunction made in September 2019 restraining their contact.[91] When the Family Consultant informed the child she would not be seeing Mr F during the assessment, she cried, as if yearning for him.[92] When Mr F was informed by the Family Consultant it was possible the interim injunction could be converted into a final order, he was described as initially being “agitated”.[93]

    [91] Family Report, para 192

    [92] Family Report, para 175

    [93] Family Report, para 96

16. The Family Consultant said this about Mr F’s interaction with the child, which evidence I accept:

    212.Despite concerns raised in 2017, Mr F appears to have continued to engage in behaviour with [the child] which may be indicative of attempts to confuse the boundaries in the relationships, for example, sending letters to her. While the mother and Mr F attempted to explain this behaviour as an innocent way for Mr F to keep [the child] connected with the property, their explanations are inconsistent with their expressed intentions to avoid further conflict or disharmony in the co-parenting environment. Mr F’s actions may also be considered inconsistent with behaviour that an adult may engage in after they have been the subject of reports with the Department raising concerns about their behaviour with a child. Additionally, Mr F’s perceptions of what [the child] needs and wants from him may be considered a concerning representation of the way in which he sees his role and relationship with [the child].

17. Even though the mother told the Family Consultant she had given the situation considerable thought, she still perceives no oddity about the nature of Mr F’s interaction with the child.[94] Her assessment of the situation, which is presumably honest, fails to attribute sufficient and appropriate weight to S’s allegations of sexual abuse, which she admits are “very serious”, and the fact that allegations of sexual misconduct have been made against Mr F in respect of both S and the child over the last three years, which allegations are unrelated and could not rationally be the subject of a conspiracy against him.[95] In cross-examination, the mother was impelled to admit she understood the concerns expressed by the father and the Family Consultant, but she still did not agree with them.

    [94] Family Report, para 52

    [95] Family Report, para 142

18. Mr F implied to the Family Consultant that these proceedings were just another attempt by the father to “intimidate and ‘make an issue’ of things to cause problems for the mother”,[96] but that is not an accurate characterisation of his motivation. The father started these proceedings because the Department advised him to do so, due to the concern held by the Department about the nature of Mr F’s association with the child,[97] which vindicated the concerns the father has held in that regard since 2017, but had held back from acting upon.[98] The father sent a text message to the mother as early as January 2017 expressing his concern about the child being cared for by Mr F.[99]

    [96] Family Report, para 94

    [97] Family Report, paras 14, 24, 137

    [98] Father’s affidavit, paras 45, 46, 56

    [99] Exhibit F1, page 145

19. The impression held by the Department about the father’s reasonable attitude when the issue was discussed in August 2019 was expressed in these terms:[100]

    [The father] does not want to sound like the parent who has issues with other parent [sic]…and he needs to make sure [the child] is safe, that is why he has taken it back to Family Law Court to allow the court to decide what is appropriate.

    [100] Exhibit M1, page 64

20. The evidence about Mr F’s possible sexual abuse of S, in conjunction with the evidence about the nature of his behaviour with the child over the past few years which tends to be consistent with him grooming her for sexual abuse, is sufficiently strong to establish that the child is at unacceptable risk of harm from her subjection to sexual abuse by Mr F.

21. To be clear, no factual finding is made to determine that sexual impropriety actually did occur between Mr F and either S or the child, but such a finding is unnecessary. The test is only as to the existence of risk, which contemplates possibilities as well as probabilities, and an assessment of its potence (M v M at 76-77).

Psychological harm

1. The father contends the child is liable to be harmed due to her emotional manipulation by the mother. His contention springs, at least in part, from the inherent contradiction in the mother’s case. On the one hand, the mother contends the child is “not psychologically safe” living with the father[101] but, on the other hand, contends the child will improve her relationship with the father and be safe in his care if the child instead lives primarily with her and spends unsupervised time with him.[102]

   [101] Family Report, paras 29, 46

   [102] Family Report, paras 46, 87; Mother’s affidavit, para 154

2. It is doubtful the child’s relationship with the father would likely be improved if she instead lives with the mother.[103] That is not what history shows, which was why the child’s residence was reversed in late 2015. Mr F sagely admitted to the Family Consultant:[104]

   We probably weren’t promoting the [child’s] relationship [with the father] the best we could.

   [103] Family Report, paras 46, 87

   [104] Family Report, para 88

3. Nor could the mother rationally explain why the child’s “psychological safety” in the father’s care depends upon whether she lives with him or instead only spends time with him. That could only logically affect the length of time during which the child is allegedly unsafe in his care.

4. If the mother genuinely believes, as she contends, the child is not safe living with the father, then the child will certainly react to her perception of the mother’s feelings. There can be no doubt of that because the mother told the Family Consultant she had come to realise:[105]

   …[the child] “picked up on stuff” from her which would have impacted on [the child’s] relationship with the father.

   [105] Family Report, para 44

5. The mother was anxious to impress, both to the Family Consultant and in evidence, how she has promoted the child’s relationship with the father and does not deliberately set out to impair it. She may not intend harm, but she is not absolved of criticism by her lack of intent, because the manner of her conduct with the child may still inadvertently cause damage to the child’s relationship with the father. The child may still “pick up” on her disrespect of the father and his capacity to properly care for her.

6. Several aspects of the evidence tend to suggest the mother’s conduct is prone to have that effect. For example:

   a)In February 2016, the child told her counsellor she was informed by the mother that the father “wasn’t a nice person” and he was “very mean to her”.[106]

   b)In May 2016, the child told her counsellor how the mother instructed her to make it clear to the counsellor that she wanted to live with the mother.[107] The counsellor concluded the child’s views were “tainted” by the mother’s negative comments, though the counsellor was unsure whether it was intentional.[108]

   c)In November 2016, the mother consented to orders which require the child to live with the father. The mother may have led or allowed the child to believe, falsely, that she did not give her consent to such an arrangement,[109] though the mother denies it.[110] Whatever the reasons, the child believes the father “stole” her from the mother.[111] The mother knows that is the child’s belief but has still not been able to disabuse the child of the notion, either because she has unsuccessfully tried or because it suits her not to. If the child knew the mother truly did agree to her living with the father, the child may be more settled in the father’s primary care.

   d)In December 2016, the child’s counsellor did not consider the child was engaged with the counselling process and was instead using the sessions as a platform to promote the mother and reject the father,[112] even though the mother agreed only the month before for the child to live with the father, presumably because she accepted those orders were in the child’s best interests.

   e)In March 2017, the child told her school staff she wanted to be with the mother instead of the father, because the father was a liar and had been violent to the mother, which information the child said she was told by the mother.[113] The child was only 20 months old when the parties separated in October 2011,[114] so it is hardly likely she could have any personal knowledge of the father’s veracity and his alleged past violent conduct towards the mother. That information must have come from the mother.

   f)In September 2017, the child’s counsellor concluded the child’s repetitive questions about why she was “taken” from the mother to live with the father was tantamount to a well-rehearsed speech.[115]

   g)In October 2017, the child’s counsellor was “concerned” about the child’s focus on wanting to live with the mother and she imputed the mother was “perhaps” influencing the child’s views.[116]

   h)In September 2018, the child’s counsellor formed the view the mother was still manipulating the child to express her wish to live with the mother instead of the father.[117] At that time, the mother admitted to the father that the child repeatedly asked to live with her and her response was to tell the child she needs to speak with the father about it.[118] The father was not challenged about the accuracy of that evidence. The incontrovertible facts are: the mother expects the child will or should return to live with her,[119] she has requested the father to allow the child to return and live with her on numerous occasions,[120] she has even spoken to “a couple of experts” about her proposal,[121] and she does not think the father can meet the child’s emotional needs because of her gender.[122]

   i)In December 2018, the saved images on the child’s iPod were deleted and substituted with images depicting the child with members of the mother’s household.[123] The implicit message the child would probably have thereby received is that the mother and her family are of pre-eminent importance.

   [106] Exhibit F5, page 2

   [107] Family Report, para 160

   [108] Exhibit ICL1, page 15

   [109] Family Report, paras 60, 218

   [110] Mother’s affidavit, paras 24-25

   [111] Exhibit F5, pages 4, 90

   [112] Family Report, para 160

   [113] Family Report, para 162; Exhibit F5, page 88

   [114] Mother’s affidavit, para 4

   [115] Exhibit F5, page 90

   [116] Exhibit F5, page 6

   [117] Family Report, para 160; Exhibit ICL1, page 23

   [118] Father’s affidavit, paras 174-175

   [119] Exhibit F5, pages 99-104

   [120] Father’s affidavit, paras 176, 179

   [121] Exhibit F1, page 133

   [122] Family Report, para 45

   [123] Family Report, para 76

7. Significantly, in cross-examination, the mother admitted:

   [The child] knows I want her to live with me.

8. In July 2019, the mother concluded the child appeared to be making plans to run away from the father.[124] She deduced that from a map of the child’s school she found drawn in the child’s diary on 20 February 2020. However, the evidence reveals that only days before, on 18 February 2020, the child was educated at school about evacuation drills.[125] When confronted with that evidence in cross-examination, the mother conceded she could not exclude the prospect that the child’s drawings, which she had assumed to be plans for the child’s escape from the father, may instead have been drawings related to her education about school evacuation. In any event, even if the child did contemplate running away from the father, it was not a plan she ever acted upon.

   [124] Mother’s affidavit, paras 84-86

   [125] Exhibit F4

1. The child has undoubtedly verbalised criticisms of the father and Ms R in ways which are false or exaggerated, including allegations of their violence, alcoholism, and illicit drug use,[126] but it remains quite unclear why the child feels the need to gratuitously criticise them in that way. The father and Ms R feel it is due to the mother empowering the child to express her desire to live with the mother, which express or implicit invitation the child has acted upon to demonstrate her allegiance to the mother.[127] In cross-examination, the Family Consultant said she concurred with their opinions on that point. The evidence is heavily supportive of that conclusion.

   [126] Family Report, paras 75, 156, 161, 171, 181

   [127] Family Report, paras 61, 77, 79

2. In the last proceedings, determined by the orders made in November 2016, the Family Consultant concluded the child had been empowered by the mother from a young age to act in disrespectful and defiant ways.[128] The current Family Consultant was inclined to think the same dynamic still persists. The child has acted disrespectfully and defiantly towards the father, but she has apologised to him and Ms R on occasions for her behaviour,[129] recognising her criticism and misbehaviour is unwarranted.

   [128] Exhibit F1, page 82

   [129] Family Report, para 79; Father’s affidavit, para 85, 107

3. According to the father, save for the incident in March 2020, the child’s behaviour has measurably improved and she has been more settled in his care since she has been prevented from seeing Mr F and her time with the mother has been restricted by professional supervision.[130] His belief is broadly consistent with the evidence, though the incident in March 2020 was certainly an incident of concern. The mother conceded in cross-examination that the child’s emotional condition had certainly improved at changeovers since the imposition of supervision in September 2019. She also agreed there are “positive aspects” of the child’s relationship with the father and that the child is “happy and cheerful” at school.

   [130] Family Report, paras 65, 70; Father’s affidavit, paras 78, 92, 209, 210

4. Another aspect of the potential threat to the child’s psychological stability is the mother’s willingness to conceal the truth from the child about certain aspects of their family life. For example:

   a)S and T ceased spending time with Mr F in February 2016, when S made allegations of his physical abuse by Mr F. To explain their absence from the household when the child visited on weekends, the mother told her they continued to visit on the weekends when she was not there.[131] The mother said in cross-examination she later modified her explanation to the child in “an age-appropriate” way by telling her in late 2017 or early 2018 that the boys no longer visit because they “want to stay with their mum” which, while not untrue, still misrepresents the full picture.

   b)The mother was restrained in September 2019, on an interim basis, from allowing the child to have any contact with Mr F. To explain his absence, the mother told the child that Mr F was working and was unable to attend the supervised visits.[132]

   [131] Family Report, paras 51, 176, 218

   [132] Family Report, paras 174, 218

5. The Family Consultant said this in respect of such concealment, which evidence I accept:

   220.Additionally, the mother’s decisions to provide [the child] with inconsistent and distorted versions of her life compromises the integrity and trust in their child-parent relationship. The mother’s actions appear to prioritise her own needs and interests and/or [Mr F’s] interests, over [the child’s]. This is very concerning, especially when considering how [the child] will manage the issues in her relationship with the mother as she matures, and particularly when she is old enough to understand and enquire about the inconsistencies in her lived experiences. The mother appears emotionally detached from the dilemma she potentially faces; namely, that the Court’s determination of [the child’s] best interests in relation to her future contact with [Mr F], may be in contrast to the decisions she intends to make with regards to her relationship with him and the contact [the child’s] siblings will have with him.

6. The Family Consultant said, and I accept, that quite apart from any risk of harm posed by Mr F, the mother poses a different risk of harm to the child by reason of her tendency to distort the child’s perceptions and artificially promote the significance of child’s relationship with Mr F. In that regard, the Family Consultant said:

   108.…The capacity of the mother to facilitate and uphold a close relationship for [the child] with the father is a key concern in this matter, and has been of considerable concern in past proceedings.

   …

   214.… Even if grooming for the purpose of sexual abuse has not occurred, there are concerns that [Mr F] and the mother have engaged in behaviour that distorts [the child’s] sense of her paternal relationships, and distorts her sense of self. They refer to her by a separate name, and seem to promote [Mr F’s] relationship as having a greater value to [the child], then [the child’s] relationship with the father.

   …

   216.Concerns about alienation dynamics by the mother has a long history and were reportedly a key focus in previous proceedings. Sadly the mother exhibits little insight into how her ongoing actions heavily contribute to the psychological turmoil, and the social and emotional risks, that [the child] is experiencing.

   …

   224.The ability of the mother to understand and effectively meet [the child’s] needs is assessed to be poor…

   225.…[even if [Mr F] poses no risk of harm at all] the mother’s proposal [for the child to live with her] would still not be considered consistent with [the child’s] best interests because the information available for this report suggests that [the child] would be at risk of psychological harm with the mother, and that [the child’s] relationship with the father may be further compromised (and may deteriorate completely).

   226. …if the mother is unable to adequately protect [the child] from harm, and unable to meet [the child’s] psychological needs to feel safe, secure and supported with each parent, then [the child’s] time with the mother may compromise her wellbeing.

7. The Family Consultant endorsed and supplemented that evidence during her cross-examination. She said the numerous episodes of the child’s expressed and demonstrated resistance to her residence with the father are most probably due to the process of her alignment by the mother, even if unintentional. The mother has always impressed upon the child how she is desperately missed, at the expense of letting her enjoy the experience of living with the father.

8. The Family Consultant agreed it was “possible” the father lacked the parenting skill to settle the child in his residential care after more than four years, but it was evident she gave that theory little credence. The Family Consultant agreed the comments the child has made to independent persons about wanting to live with the mother tend to demonstrate she is unhappy, but asserted they did not prove why she is unhappy. By way of explanation, the Family Consultant tended to default back to the issue of the process of alignment to which the child has been exposed over many years.

Conclusions

1. The father poses no risk of harm to the child.

2. Mr F does pose an unacceptable risk of harm to the child, against which she must be protected (s 60CC(2)(b)). The Family Consultant considered that was the key issue in the proceedings,[133] as indeed it is. Unfortunately, that is a risk to which the mother is not attuned. The Family Consultant found the mother avoidant of and disconnected from the seriousness of the problem,[134] which was her similar presentation at trial. I accept the Family Consultant’s evidence, given in cross-examination, that the mother was not being “purposefully evasive”.

   [133] Family Report, para 34

   [134] Family Report, paras 40, 53, 54

3. It must be difficult for the mother to contemplate how she could manage two competing objectives: on the one hand, keeping the child safe, but on the other hand, maintaining her relationship with Mr F and keeping their new family intact. In cross-examination, she conceded she had not given the problem much thought. She was hoping she would not have to confront the problem, which would follow from the Court finding Mr F poses no risk of harm at all, but her hopes are dashed. When pressed about the incompatibility of her objectives, she said she would continue her relationship with Mr F, even if he is found to pose a risk of harm to the child. It must follow that, in those circumstances, she would choose to keep her new family intact and any future arrangements for the child’s contact and communication with her would have to be managed around that imperative.

4. The idea to which the mother then seemed attracted as a fall-back position would be that the child could spend time with her and her three half-siblings at the home of the maternal grandparents, who would be happy to accommodate them all. She envisaged the child could be successfully restrained from any form of contact or communication with Mr F. She and the maternal grandparents all said they would faithfully abide by an injunction to that effect, though the father doubted they could or would.

5. The mother’s conduct does tend to de-stabilise the child’s sense of emotional security, which reflects adversely upon her parenting capacity (ss 60CC(3)(f) and 60CC(3)(i)), but I am not satisfied the mother’s conduct is such that it causes the child to suffer “serious psychological harm”, in which case it is not a species of “abuse” (s 4(1)) and is therefore not a primary consideration which affects the child’s best interests (s 60CC(2)(b)). To be clear, the father did not pitch his case any differently. He said to the Family Consultant only that:[135]

   …he does not feel that the relationship [between the child and the mother] meets [the child’s] psychological needs in the way it should.

   [135] Family Report, para 65

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – statutory factors

Section 60CC(2)(a)

1. In consultation with the Family Consultant, the child described her residential experience with the father positively,[136] though she described her personal relationship with him negatively, which the Family Consultant found to be “entirely inconsistent” with her observations of their interaction.[137] The child presented as happy and friendly and she was observed to engage warmly and comfortably with the father, Ms R and their two young children.[138] She was even seen to relax with them, once she had completed her similar observation session with the mother and members of the maternal family.[139]

   [136] Family Report, para 179

   [137] Family Report, para 189

   [138] Family Report, paras 179, 193, 194, 196

   [139] Family Report, para 205

2. On the whole, the child enjoys a loving relationship with the father, from which she does and should derive benefit. The mother’s counsel did not submit to the contrary.

3. However, a real question remains about the mother’s capacity to appreciate the importance of the child’s relationship with the father. The Family Consultant said, and I accept:

   108.…The capacity of the mother to facilitate and uphold a close relationship for [the child] with the father is a key concern in this matter, and has been of considerable concern in past proceedings.

4. The Family Consultant said this in respect of the child’s interaction with the mother and members of the maternal family, about which she was not challenged:

   189.[The child’s] relationships are very complex. She identified her closest relationship as the mother. Yet, the mother does not present as attuned or empathic to [the child’s] needs and observations of [the child] with the mother do not appear relaxed and comfortable…

   …

   205.[The child’s] interactions did not appear relaxed or comfortable throughout the observations of her with the maternal family. She appeared anxious and preoccupied with controlling the interactions, and appeared keen to keep the focus on her chosen activities. There were elements of her interactions which suggested she was trying to please or obtain approval/reassurance from others in the room. She also appeared to deflect more general interaction…

5. Notwithstanding the Family Consultant’s reservations, the child does enjoy a loving relationship with the mother, from which she does and should derive benefit, but it would seem she does not derive the full measure of benefit from it because she is pre-occupied with pleasing the mother. Most probably that is because of her sense of conflicted loyalty, induced by the pressure exerted upon her by the mother, even if only inadvertently, to show her allegiance to the maternal family.

Section 60CC(2)(b)

1. Mr F poses an unacceptable risk of harm to the child, against which the child needs protection, for the reasons already explained.

2. The child does not require protection against any harm caused by any other form of “abuse”, “family violence” or “neglect” in either party’s household.

Section 60CC(3)

1. On many occasions, the child has expressed a clear view about her preference to live with the mother (s 60CC(3)(a)), but she is “mostly” settled with the father and at school.[140] The mother did not concede that evidence unconditionally, but she did admit there were positive aspects to the child’s relationship with the father and she did admit the child was happy at school.

   [140] Family Report, para 80

2. There are three reasons why the child’s clearly expressed desire to live with the mother should not be afforded significant weight. First, she is barely 10 years of age and lacks the maturity to understand the dynamics of the problem – particularly the risk of harm Mr F poses to her and how the mother may not be actively supporting her important relationship with the father. Secondly, her expressed views are incongruent with her apparent settlement in the father’s residential care and at her current school. Thirdly, the Family Consultant considers her views have been influenced by the mother,[141] which evidence I accept. The evidence of the child misbehaving on past occasions when being returned to the father after visits with the mother is obviously consistent with her acting in accordance with her genuine wish to stay with the mother, but such behaviour is just as consistent with the child being influenced by the mother, even if only unintentionally, to hold that wish.

   [141] Family Report, paras 188, 217, 222

3. The child has loving relationships with Ms R, Mr F, her five half-siblings, and the maternal grandparents (s 60CC(3)(b)(ii)).

4. The mother does not pay the father any child support (s 60CC(3)(ca)).

5. The reversal of the child’s residence, for which the mother contends, would cause the child some disruption (s 60CC(3)(d)). She would adore being back amongst the maternal family, but there is a real risk that her relationship with the father would atrophy. The mother is not as reliable in promoting the child’s relationship with the father as the father is in promoting the child’s relationship with the mother. The child would also need to change schools and suffer the dislocation of her current peer relationships.

6. The homes of the parties and the maternal grandparents are several hours driving time apart (s 60CC(3)(e)), but not so far that the child cannot be passed between them intermittently without undue difficulty or expense.

7. The mother is not as well equipped as the father to provide for the child’s emotional needs (s 60CC(3)(f)), for the reasons already discussed. For those same reasons, by comparison with the father, the mother demonstrates an inferior attitude to the responsibilities of parenthood (s 60CC(3)(i)). The mother apparently believes the father cannot meet the child’s emotional needs,[142] but that is not a view shared by the Family Consultant.[143] Nor is her view consistent with the evidence.

   [142] Family Report, para 45

   [143] Family Report, para 223

8. The parties conceded to the Family Consultant that “family violence” is not a material issue in these proceedings (s 60CC(3)(j)).[144]

   [144] Family Report, paras 31, 117

9. There is no family violence order in force (s 60CC(3)(k)).

10. Given this is the fourth dispute commenced between the parties under Part VII of the Act, no suite of orders offers any better chance of finally ending the dispute between the parties (s 60CC(3)(l)).

Conclusion and orders

1. The evidence comfortably rebuts the presumption of equal shared parental responsibility (s 61DA(4)), which is hardly controversial because both parties sought sole parental responsibility for the child and the Family Consultant recommended it.[145]

   [145] Family Report, para 232

2. However, in final submissions, the father confirmed he did not seek sole parental responsibility on an unqualified basis; he only sought sole parental responsibility for the child in respect of all “major long-term issues”, as that phrase is defined in the Act (s 4(1)). The order is therefore made in those terms, since the child should continue to live with him.

3. The child should live with the father for several reasons:

   a)she cannot live with the mother, because Mr F poses an unacceptable risk of harm to her and the mother is intent on retaining her domestic relationship with Mr F and their three younger children;

   b)as residential carer, the father offers the child a better chance of emotional stability and a better chance of maintaining meaningful relationships with both parents. Without ignoring the evidence of the child’s occasional episodes of violent and voluble resistance to her residence with the father, she is already relatively settled in his care;

   c)aside from the child’s expressed views, the mother was unable to offer any convincing reason to reverse the residential arrangement which has now been in place for more than the last four years; and

   d)the Family Consultant adhered to her recommendation that it was in the child’s best interests to remain living with the father[146] and her evidence was generally compelling.

   [146] Family Report, paras 226, 233

1. The only plausible reason advanced by the mother for the child to instead live with her is that the child desires it but, for the reasons already explained, the child’s views are not accorded any significant weight.

2. The question then arises as to whether, and if so how, the child is able to interact with the mother in the future. I accept the Family Consultant’s evidence that the elimination of the mother from the child’s life would be devastating for the child,[147] so that option is not considered any further.

   [147] Family Report, paras 229, 230

3. The child cannot spend time with the mother at her own home, because the child could not then be adequately protected from Mr F, as he will continue to live with the mother. There is no option but to restrain the mother from allowing the child to have any form of contact or communication with Mr F. The doubts entertained by the father and the Family Consultant about the mother’s capacity and willingness to enforce such an injunction are well founded, but the mother must now know if she is subsequently found to have breached the injunction there would be little alternative but to eliminate all forms of her contact with the child. While doubts also reasonably exist about the capacity and willingness of the maternal grandparents to help the mother comply with such an injunction, there is a much better chance of the injunction being observed by the joint effort of the maternal family.

4. The only realistic alternative on the evidence is for the child to spend time with the mother and her maternal half-siblings at the maternal grandparents’ home, which was foreseen by the Family Consultant.[148] That was an alternative option the mother embraced with the Family Consultant[149] and in cross-examination. The maternal grandparents both confirmed in cross-examination that was an arrangement they would be content to support.

   [148] Family Report, para 236

   [149] Family Report, para 27, 227

5. The flavour of the Family Consultant’s oral evidence was her inclination to recommend the child’s interaction with the mother be supervised, and furthermore, the supervision be provided professionally rather than by the maternal grandparents. That was so even if the child could be successfully kept away from Mr F. When explored with her, the reasons advanced for that opinion were twofold: the mother’s distortion of the child’s sense of paternal relationships and her sense of self;[150] and the mother’s influence over the child to actively challenge the retention of her residence with the father.[151] The Family Consultant did not believe the maternal grandparents could supervise the mother with the child in a way which would eradicate the problem of the mother’s emotional influence over the child.

   [150] Family Report, para 214

   [151] Family Report, para 215

6. In reliance upon that evidence, the father sought to grossly restrict the child’s interaction with the mother by shortening the duration of visits, decreasing the frequency of visits, and imposing the requirement of professional supervision.[152] So did the ICL.[153]

   [152] Amended Initiating Application, filed 28/2/20

   [153] Exhibit ICL2

7. Even allowing for the finding that the mother’s past conduct had an adverse emotional effect upon the child, just as the Family Consultant said, the remedy proposed by the father and the ICL is unduly harsh. The problem can be alleviated by less severe measures like: confinement of the child’s visits with the mother to weekends, spaced well apart, and enjoyed at the home of the maternal grandparents. The child would then still enjoy warm personal engagement with the mother, the maternal grandparents, and her maternal half-siblings, but the potential for the child’s adverse emotional disturbance would be diluted. Interaction between the child and the mother on those terms is less likely to undermine the child’s sense of stability with the father.

8. Significantly, when a formative proposal in those broad terms was put by the ICL to the Family Consultant in cross-examination for her consideration, the Family Consultant said she could “support” it, providing the Court was satisfied the mother was not actually causing psychological harm to the child and the child was kept away from Mr F.

9. The Family Consultant said the child was at risk of psychological harm when with the mother,[154] which is accepted, but three points need to be made. First, actual psychological harm, in a clinical sense, should be differentiated from simple emotional disturbance or upset. Secondly, there is a quantitative difference between psychological harm and “serious” psychological harm. Thirdly, as was earlier explained, the Family Consultant did not say the mother was causing the child to suffer “serious psychological harm”, in which case her parental conduct is not abusive. Rather, the mother’s conduct manifests an impaired parental capacity. Analysed in that way, there is no primary imperative to protect the child from the risk of “abuse”, but of course the orders must still take account of the mother’s impaired parenting capacity so as to promote the child’s best interests.

   [154] Family Report, para 225

10. As the Family Consultant said in cross-examination, the nature of the child’s future interaction with the mother must be determined by balancing risk against benefit. The child derives benefit from her filial relationship with the mother, which is a “primary” consideration. The risk of the child being subjected to continuing deleterious emotional influence by the mother remains a salient “additional” consideration, but not so important that it outflanks the primary consideration. The primary consideration would be outflanked by the additional consideration if orders of the type proposed by the father and the ICL were made.

11. For those reasons, contrary to the proposal of the father, the proposal of the ICL, and the qualified recommendation of the Family Consultant, no order will be made requiring the child’s interaction with the mother to be formally supervised – either professionally or by the maternal grandparents. However, to ensure the child only spends time with the mother as is intended, the mother is restrained from attending at or near to the child’s school or any venue where the child plays sport or participates in some other extra-curricular activity. There was some evidence she has done so in the past.

12. The child can be exchanged between the parties by the father arranging her delivery to the maternal grandparents’ home and by the mother arranging her return to the father’s home. Since the maternal grandparents are not parties to the proceedings, the orders cannot bind them, but the Family Consultant’s opinion that the child would benefit from the mother not being directly involved in the changeovers must surely be right. It would be better if one of the maternal grandparents, rather than the mother, returns the child to the father.

13. Although the father equivocated in final submissions about his proposal for the child to communicate with the mother once each week for up to 15 minutes, an order to that effect is made. The Family Consultant said such communication should be stopped “if they are not meeting the child’s emotional needs”, but there will be much less chance of that given the limitation of the child’s personal interaction with the mother. It is more likely the mother will use the 15 minutes each week with the child as it is intended – to retain her loving relationship with the child and discuss events in her life; not use it as an opportunity to de-stabilise the child’s residence with the father. An order will, however, restrain the mother’s communication with the child in other written and electronic forms.

14. The orders allow the parties to furnish the orders and reasons for judgment to the maternal grandparents so they may be independently informed of various facts about which they have seemingly been ignorant: the child lives with the father because the mother consented to that arrangement in November 2016; serious allegations of child sexual abuse were made against Mr F in 2019; the police and the Department believe Mr F probably did sexually abuse S; Mr F has so far not been prosecuted for criminal offences because S is an unwilling witness at this time, but the investigation is only suspended, not closed; and the mother has acquiesced to Mr F forming an unusually intimate relationship with the child, which independent persons objectively find worrying.

15. The father abandoned his application for orders relating to the child’s passport.

16. The orders require the Family Consultant to explain the orders to the child and, if considered appropriate, the reasons for the orders. That was the Family Consultant’s recommendation.[155]

    [155] Family Report, para 237

17. The remaining orders are made in the child’s best interests and could not be the subject of reasonable objection.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 20 July 2020.

Associate: 

Date:  20 July 2020