Rilak and Tsocas (No 3)

[2015] FamCA 446

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO 3) [2015] FamCA 446

FAMILY LAW – CHILDREN – Interim parenting – Best Interests – Where the child is five years of age – Where the child lives with her mother – Where during a part-heard final trial the father sought that he has sole parental responsibility and that the child live with him pending further order – Where the mother sought that the father spend no time with the child – Where the ICL supported the father’s proposals – Where the mother has alleged that the father has sexually abused the child – Where the mother was warned not to interrogate the child about the allegations, but continued to do so – Where the child has a meaningful relationship with both parents – Where there is a high level of conflict between the parents –Where the single expert identified a grave risk in the current arrangements – Where the Court found that there is not an unacceptable risk to the child of sexual abuse in the hands of the father – Where the father’s time with the child is restored on an overnight basis but with supervision – Where the mother is restrained from questioning the child about abuse or allowing her to be questioned and from denigrating the father or paternal family.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC, 75(d), 79

Goode & Goode (2006) FLC 93-286
Marvel v Marvel (2010) 43 Fam LR 348
SS v AH[2010] FamCAFC 13

APPLICANT: Ms Rilak

RESPONDENT: Mr Tsocas

INDEPENDENT CHILDREN’S LAWYER: Peter Baker Solicitor

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 12 June 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATES: 2 June and 5 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT FATHER	Mr Levy
SOLICITOR FOR THE FATHER	Watts McCray Lawyers

RESPONDENT MOTHER IN PERSON

ADVOCATE FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

Orders

IT IS ORDERED THAT:

1. Leave is granted to the mother to file a further affidavit in relation to her Amended Application in a Case filed 2 June 2015 (re interim parenting).

1. The proceedings are listed for completion of the final hearing over four days commencing 4 August 2015.

2. The Court requests that by 10.00 am on 4 August 2015 the Independent Children’s Lawyer seek to settle with the parties a Trial Plan apportioning the time between the parties for cross-examination of the remaining witnesses and substantially leaving 7 August available for submissions.

1. In the event that any party seeks to rely on any further affidavits they are to be filed and served by 10.00 am on 6 July 2015.

2. The proceedings are adjourned to 6 July 2015 for the purpose of dealing with any procedural or machinery issues in relation to the trial commencing on 4 August 2015 including confirmation of a trial plan.

3. Until further order the current parenting orders, including the orders of 11 February 2013 are varied to provide that the child B born on … 2010 spend time with the father from 3.00 pm on Friday 19 June 2015 and each Friday thereafter until the commencement of pre-school on the following Monday.

1. Unless the parties otherwise agree in writing the mother is to cause the child to be available to be collected from F School at 3.00 pm each Friday and the mother is not to be at or in the vicinity of F School at those times.

1. In the event that F School is not operating whether during school holidays or otherwise, unless the parties otherwise agree in writing the mother is to cause the child to be available for collection at 3.00 pm each Friday at E Town Police Station and the father is to collect the child at that time and place.

1. In the event that the G Pre-school is not operating, whether during school holidays or otherwise, unless the parties otherwise agree in writing the father is to cause the child to be available to be collected at 10.00 am each Monday at E Town Police Station and the mother is to collect the child at that time and place.

1. In the event that on any occasion the child is not available for collection at the commencement of her time with the father, subject to the parties reaching an agreement for other commencement arrangements, the father is at liberty to apply for a recovery order and for the full time residence of the child on 24 hours’ notice to the mother, the Independent Children’s Lawyer and the Court. 

1. Not later than 6.00 pm on 16 June 2015 the mother provide to the father the address of the F School and of the child’s G Pre-School.

1. The father’s time with the child shall be supervised at all times by either Ms Tsocas or Ms H.

1. Until further order the mother is restrained from questioning the child or discussing with her any matter relating to these proceedings or to any allegation of physical or sexual abuse of the child by the father.

1. Until further order the mother is restrained from discussing any matter relating to these proceedings or to any allegation of physical or sexual abuse of the child by the father in the presence or hearing of the child and she is restrained from permitting any other person or persons to do so or to question the child or discuss any such allegation with her, other than officers of the Department of Family and Community Services or of the NSW Police.

1. In the event of a breach of orders 6 or 7 leave is granted to the father and the Independent Children’s Lawyer to forthwith restore the proceedings to the list in relation to the future residential arrangements for the child.

1. The Court Noted that orders 6, 7, 8 and 9 are inconsistent with an interim Apprehended Violence Order made by the Local Court at I Town on 16 April 2015 and pursuant to Division 11 of Part VII of the Family Law Act1975 (Cth), to the extent of that inconsistency, the interim Apprehended Violence Order is invalid and these orders prevail.

1. The Court requested the Registrar to send a sealed copy of these orders to:

   (a)The Registrar of the Local Court at I Town

   (b)The Commissioner of New South Wales Police

   (c)The Secretary of the New South Wales Department of Family and Community Services

1. That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: 2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

Introduction

1. There are parenting and financial proceedings between Ms Rilak and Mr Tsocas.  The parenting proceedings relate to their only child, B, who is five years of age.  The final hearing of the proceedings is part-heard before the Court, having commenced in January 2015, continued in May 2015 and it is listed to conclude over four days commencing on 4 August 2015.

2. Pursuant to interim orders made on 11 February 2013 the child should live with her mother and spend time with her father each Saturday from 9.30 am to 3.30 pm.  Both parents applied for immediate changes in those parenting orders pending final judgment in the proceedings.

3. I heard those applications on 2 and 5 June 2015 and made the orders referred to above.  These are the reasons for those orders.

Applications

1. Among other orders, the father proposed in the interim and immediately, that he have sole parental responsibility for the child and that she live with him.  He proposed that the child spend no time with the mother for 14 days and then that the mother have time with her, once a week on a Saturday or Sunday, supervised by Interrelate.  The father sought a number of injunctions.

2. The mother proposed that pending the final judgment she retain sole parental responsibility for the child and that the child continue to live with her.  She sought that the child spend no time with the father until “the matter into the alleged sexual abuse is legally finalised and determined”. 

3. The Independent Children’s Lawyer (“ICL”) opposed any interim changes to parental responsibility but otherwise generally supported the father’s proposals.  He proposed that the arrangement with the father be described as the child “spending time” with the father and that his time be fully supervised by his mother or Ms H.  The ICL sought a number of injunctions.

Expert Evidence

1. The following single expert evidence was relied on:

   Report of Dr C dated 28 May 2014.

The Litigation

1. The proceedings commenced in 2010 and the final hearing was listed over four days commencing on 27 January 2015 in relation to parenting and financial issues, including settlement of property.  The hearing commenced on 27 January 2015 and could not be completed that week.  It was adjourned for the resumption and completion of the hearing on all issues to three days commencing on 20 May 2015. 

2. The hearing resumed on 20 May 2015.  On 22 May 2015 the mother applied for orders including that I recuse myself from the proceedings and that the father’s solicitors be restrained from acting for him.  When I decided to complete the cross-examination of the single expert, before, later that same day, hearing the mother’s applications, she withdrew instructions from her own solicitor and immediately left the Court.  In circumstances that are set out in earlier interlocutory judgments in these proceedings, upon the conclusion of the expert’s evidence, the father applied for the immediate removal of the child to his care.  After hearing submissions from counsel for the ICL and for the father but in the absence of the mother and for reasons given at the time, I refused to order an immediate change of residence and adjourned the father’s application to 2 June 2015 before me. 

3. On 2 June 2015 the mother appeared in person and filed two amended Applications in a Case, one seeking my recusal and a restraint upon the father’s lawyers (solicitors and counsel) continuing to act and related orders.  Her other amended application sought orders including the interim parenting orders pressed by the mother in these interlocutory proceedings.  On 2 June 2015 I heard and refused the mother’s applications for recusal and restraint. I published reasons for those decisions on 5 June 2015.  On 2 June 2015 the mother sought a stay of the proceedings pending an appeal in respect of the recusal and restraint orders.  On condition that the mother filed her notice of appeal promptly, I heard that application and for reasons given that day, I refused to grant a stay.

4. On 2 June 2015 I heard some submissions in respect of the competing interim parenting applications and adjourned those proceedings to 5 June 2015.  On 5 June 2015 the hearing of the parents’ interim parenting applications concluded and I made the orders set out earlier in these reasons and told the parties that reasons for judgment would be published as soon as practicable.

Short History

1. The father is 57 years of age.  The mother is 48 years of age. The parents met in August 2008 and married in 2008.  The child B is the only child of the parents’ relationship and was born in 2010.  The parents separated on a final basis on 9 February 2010, two weeks after the child’s birth.  On 11 February 2013 Justice Rees ordered that the child spend unsupervised time with the father every Saturday from 9.30 am to 3.30 pm.  It is from those orders that each of the parties seeks to depart.

Background Facts

1. On 14 November 2008 the mother and father commenced cohabitation.  They married in 2008.

2. B was born in 2010.  The surname for the child was made up by the mother as a combination of the parents’ names.  There is some controversy about the current status of the child’s registered surname but that controversy is not relevant to these interlocutory proceedings.

3. The parties separated on a final basis on 9 February 2010.

4. These proceedings were commenced in what was then the Federal Magistrate’s Court in 2010.

5. The father saw very little of the child until September 2011.

6. On 5 September 2011, Federal Magistrate Sexton (as her Honour then was) ordered that the child spend time with the father in a park for two hours a week.  The orders allowed for unsupervised time but permitted the mother to remain in the vicinity.

7. The parents were divorced on 18 October 2011.

8. On 5 September 2011, Federal Magistrate Sexton made orders by consent that the child spend time with the father for two hours each Saturday and for “arranged contact times” supervised by Interrelate Children’s Contact Centre at Suburb J.  Her Honour noted that it was anticipated that the Centre would be able to provide contact for at least one hour per fortnight.

9. On 3 February 2012 the child commenced spending supervised time with the father for one hour every alternate Friday supervised by Suburb J Interrelate.  This time was in addition to the two hours spent with the father each Saturday at the park.  the child continued to spend time with the father until 10 February 2013.  The father said that from 10 September 2011 until 10 February 2013 the child spent time with him on all but six Saturday mornings.

10. In 2013 the child attended at G pre-school in Sydney twice a week for a few hours.

11. On 11 February 2013 Justice Rees ordered that the child spend unsupervised time with the father every Saturday from 9.30 am to 3.30 pm.  The handovers were to be at Interrelate at Suburb J.

12. At some point the mother and the child moved to live in the E Town area.  The father continues to lives in Suburb K.

13. On 6 March 2015 the mother sent an email to the father, which she copied to Interrelate, saying that he either contribute $50 per week towards her petrol expenses or that he collect the child from E Town.  The father rejected that proposal and ultimately proposed that he collect the child from school each Friday and return her to school each Monday.

14. On 23 March 2015 the mother sent an email to Interrelate which stated:

    As per our conversation three weeks ago, I’m confirming I’ll be ceasing the children’s contact service of CO/CB as of 31 March 2015 due to financial circumstances.  Our last day will be on Saturday, 28 March 2015.

15. The mother told the child words to the effect that the contact on 28 March 2015 would be her last contact with the father.  In cross-examination the mother suggested that she intended to convey to the child that the cessation was temporary.  It is not necessary to decide whether that is what was intended.  I doubt that a five year old would appreciate the distinction between a permanent and an indefinite cessation.  Suffice it to say that the child understood that her Saturdays with her father would cease and she said as much on that day.

16. The father says that the child was unwell when he collected her on the morning of 28 March 2015.  He said that she vomited during the day but was feeling better by the time she was to return to her mother.

17. The mother says that the child had a temperature on return and that evening during two tepid bath sessions, intended to reduce her temperature, the child disclosed that her father had sexually assaulted her.  On 2 April 2015 the mother made a notification to Department of Family and Community Services (“FACS”).

18. On 16 April 2015 an Apprehended Violence Order (“AVO”) was granted by the Local Court at I Town, by consent, against the father and for the protection of the child.  the child was interviewed by the Joint Investigation Response Team (“JIRT”) officers on 3 and 10 April 2015.  On 18 May 2015 JIRT advised that they did not have sufficient evidence to support a prima facie case against the father.[1]  The police told the mother not to question the child about sexual abuse allegations.

    [1] Exhibit 21.

19. The father has not spent any time with the child since 28 March 2015.

20. The mother made a further report to E Town police in relation to a subsequent disclosure allegedly made by the child, to the effect that the father had taken photographs of the child when she was naked.  The mother insisted that the police arrest the father.  She was reluctant to leave a USB stick containing a discussion with the child about the latest disclosure, with the police because she said she was concerned that the police would erase the recording.  The mother was upset at the police station and was asked to leave.  Detective Sergeant L of the E Town police reported that the latest notification had not yet been investigated.

The Expert Evidence

1. Dr C, is a Child Adult and Family Psychiatrist with rooms at Suburb M and Suburb N, NSW.  Her qualifications include the following: MBBS (1977); Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) (1987) and Certificate in Child and Family Psychiatry (1988).

2. Dr C’s clinical experience since 1987 includes working as a staff specialist and VMO locum.  Dr C currently works in private practice in supportive and exploratory psychotherapy, child and family psychiatry.

3. Dr C prepared a report in this matter dated 28 May 2014.

4. Dr C was cross-examined on 21, 22 May 2015 and on 2 June 2015.

The Legislation

1. The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.

39. The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility.  The presumption may not apply but if it does apply, it can be rebutted.  If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time.  Findings are made by reference to what is in the child’s best interests.

1. The way in which parenting issues are decided has been discussed in a number of cases.  In Goode & Goode (2006) FLC 93-286 (“Goode”) the Full Court set out the approach to be taken in parenting proceedings.

2. In some cases it is necessary to make interim decisions about parenting arrangements.  That particular situation was also addressed in Goode. The main challenge for interim parenting determinations was discussed by the majority (Boland and Thackray JJ) in SS v AH[2010] FamCAFC 13 (“SS v AH”).  The majority said that care is necessary to be exercised in making findings of fact in interim parenting proceedings.  Those comments were cited with approval in Marvel & Marvel (2010) 43 Fam LR 348. That is not to say that allegations in respect of which it is not possible to make findings of fact, can be ignored.

3. Parenting decisions can be difficult after the conclusion of a final hearing, let alone on an interlocutory basis.  On any view, it is highly undesirable to make changes to parenting arrangements after the final hearing has commenced but before it has concluded.  Even in circumstances such as presented in this case, where all parties argued for immediate changes to the current orders, the Court must be resistant to making orders on an interim basis that might pre-empt or worse still, be inconsistent with, orders identified after the conclusion of a final hearing.  That said, here I had the advantage of having heard some/most of the cross-examination of the parents, the other lay witnesses in the parenting case and I had the advantage of a written report from the single expert child and family psychiatrist, oral opinion evidence from her on the urgent recent circumstances together with substantial cross-examination on that evidence.

1. For the purposes of these reasons, I will adopt the following approach:

   a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;

   b.where possible and relevant, consider and make findings about matters set out in s 60CC;

   c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;

   d.apply s 65DAA if relevant and assess the proposals in light of that provision;

   e.if 65DAA is not relevant, assess the proposals against the best interests criterion;

   f.consider and make findings about living arrangements; and

   g.make orders.

The Parties’ Proposals

1. As I set out above, the mother proposed that pending the final judgment she retain sole parental responsibility for the child and that the child live with her.  She sought that the child spend no time with the father until “the matter into the alleged sexual abuse is legally finalised and determined”. 

2. Among other orders, the father proposed that he have sole parental responsibility for the child and that she live with him.  He proposed that the child spend no time with the mother for 14 days and then that the mother have time with her, once a week on a Saturday or Sunday, supervised by Interrelate.  The father sought a number of injunctions.

3. The ICL rejected the proposed changes to parental responsibility but otherwise generally supported the father’s proposals.  He proposed that the arrangement with the father be described as the child “spending time” with the father and that his time be fully supervised by his mother or Ms H.  The ICL sought a number of injunctions.

4. The range of dispute on the key areas is, whether:

   a)There should be any order made at this stage about parental responsibility;

   b)B should immediately live with the father and after a break of 14 days, have only supervised time with the mother; or

   c)B should remain living with the mother and have no time with the father.

5. As it was not otherwise proposed, prior to the completion of submissions for each party I asked them to consider another option – that the child remain living with the mother but resume having time with the father, overnight, albeit on a supervised basis.

Section 60CC Considerations

1. As with some other provisions of the Act, s 60CC was amended with effect from 7 June 2012 but only for new proceedings.[2]  As the legislation related to these proceedings the section specified the following considerations:

   [2] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 - Act No. 189 of 2011. Section 45 of the amending Act provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after the commencement.”

Primary considerations:

(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents

1. The parents have a very poor opinion of each other.  The mother does not consider that the father has anything to offer the child.  It transpired from her evidence in January 2015 that the mother only asked for orders about the child spending time with the father because she thought that is what the Court will order in any event. The father considers that the mother is abusive to the child and that notwithstanding their close relationship, the child should mainly live with him.

2. Through the turmoil of the last five years, there is evidence of a warm relationship between the child and each of her parents.  That is the evidence of each of the parents about their own relationship with the child and it is supported by Interrelate notes and other witnesses.

3. Despite their poor opinion of each other, the facts suggest that there is meaning in the child’s relationship with each parent.  I have little doubt that those relationships are important and valuable.  Whether she is safe with each parent is another question.  In each case, as the parties contend, there are questions to be asked about the parenting capacity of each of the parents.  That said, in my view, provided the child can be safely and lovingly cared for, any orders should promote her relationship with each of her parents.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. ‘Abuse’ and ‘family violence’ are defined terms. The definitions were changed as of 7 June 2012 but only for new proceedings. As the legislation related to these proceedings s 4 of the Act retained the earlier definitions.

2. As is almost invariably the case, the critical question in these interlocutory proceedings is that of immediate serious risk to the child.  The parents have made serious allegations against each other.

The Mother’s Allegations Against the Father

1. The mother believes that the child has been sexually abused by the father and that she would be at risk of sexual abuse in the father’s care.

2. The mother says that the father is a violent man.  She says that the father has squeezed the child’s hand when she is mischievous.  In her evidence, the mother included a video of the mother asking the child questions and the child agreeing that the father squeezed her hand.  In the January 2015 phase of the hearing the mother gave evidence that she believed that the hand squeezing is likely to escalate and that this behaviour is “just the beginning” of what could happen as the child gets older.

3. The mother gave evidence that on 9 November 2013, the child returned from spending time with the father in a tired state.  The mother took the child to Suburb O hospital.  The hospital records state that the mother “attended emergency department as mother believes patient required urine drug screen and further investigation into suspected child abuse matters”.  She also told the hospital that her concerns of potential sexual abuse arose from the father warning the mother around the time of separation to be wary of any new partner she might have of sneaking into the child’s room.  The mother said she interpreted his comment as meaning that the father might act sexually inappropriately with the child.  The mother said that she called a social worker later that evening.  It must be said that on her own evidence, the mother’s interpretation was and is bizarre.

4. The Interrelate records note that on 5 July 2014 the mother asked the child if the father had squeezed her hand tightly, to which the child responded yes.  The notes again record in December 2014 that the mother asked the child if the father squeezed her hand to which the child shook her head.  When asked about this in cross-examination, the mother said that the child shaking her head did not necessarily mean she was saying no to the question.

5. The paternal grandmother did not recall any incidents of the father squeezing the child’s hand.  On the evidence no helpful findings are available in relation to whether the father ever squeezed the child’s hand in a violent or abusive way.  For the purposes of these proceedings I cannot make a finding that abusive hand squeezing was the first stage in a program of escalating physical abuse of the child, by her father.

6. Dr C understood the mother to report that every four to six weeks the father would make a big deal, accusing her and demeaning her with put downs in front of P.  For example, the mother gave evidence that:

   a)during arguments the father would say to her “This is my house and here are my rules and if you don’t like it here you can pack your bags and fuck off!”;

   b)when she was seven months pregnant the father said “You are lazy and always tired. I don’t need you, I can do this on my own”;

   c)the father would criticise her communication skills and say “You are stupid, you don’t understand”;

   d)the father would spit at her; and

   e)the father told her he kept records of the mother’s conduct and that he said to her “I keep notes of your behaviour and know how many time (sic) you started an argument or how you treated [P]”.

7. The mother alleged that the father had thrown his first wife out of their home and took all their money and P.  The mother also told Dr C that the father had recruited his ex-wife to say that the mother had abused P.  I do not recall all of those allegations being put to P’s mother in cross-examination.  P’s mother was cross-examined by the mother and rejected the thrust of the mother’s allegations in relation to the father’s treatment of her and of her son, P.  She gave evidence to the effect that she was entirely satisfied with the father’s care of P.  The evidence in chief, expert witnesses and most of the cross-examination of the mother and father, having been completed, it is likely that the mother will not be able to support those allegations.

8. The mother asserted that the father has sedated the child.  The Interrelate records note that on 8 December 2013 “The mother expressed her concern that the father could have drugged the child to encourage her to sleep during the day.  If the child were to arrive at the centre again asleep, then the mother would report her concerns out of the possibility of the child being ‘drugged’, considering this behaviour for the child is out of the ordinary.”  Dr C reports at page 14 of her report that the mother took the child to get drug tested at Suburb O Hospital on 9 November 2013.  The father denies he has sedated the child and said that until March 2015 he had never administered any medication to her.  He is concerned that the mother took the child to hospital and that she endured numerous drug tests unnecessarily.  The allegation is bizarre and in the absence of credible evidence, the mother is not likely to be able to support that allegation.

9. The mother has also alleged that the father told her that he has:

   ·Physically punished P;

   ·Used a bamboo stick to hit P;

   ·Called P a “little shit”;

   ·Smacked P on the head or body;

   ·Kept P home from school because he had a hand print on his cheek;

   ·Kicked or punched P while wrestling with him and at other times; and

   ·Smacked P with a belt buckle.

10. The father substantially denied the mother’s evidence on this issue.  He denied that he told the mother that he has smacked P with a belt buckle or smacked him on the bottom until he cried.  He says he was strongly opposed to anyone physically disciplining P.  There is no direct evidence, let alone any independent evidence, to support the mother’s allegations.

11. The father denies that he has ever called the mother a “fucking bitch”.  He concedes that he said to the mother “you are a bitch to me”.

12. In relation to a safety concern of the mother for the child in the father’s care.  The father denied that he has ever left the child under the supervision of P while at the beach.

13. Happily, the mother does not allege that her relationship with the father was characterised by physical violence.  The mother alleged that on one occasion the father deliberately spat on her but said that otherwise he was never physically violent to her.

14. Prior to the second phase of the trial, the mother filed a further affidavit dated 12 May 2015.  In this affidavit she gave evidence that the child returned from time with the father on 28 March 2015 looking feverish and unwell.  She said that on the evening of 28 March 2015 the child told her (in her own language) that the father had touched and put something inside her vagina.  She said that the child reported that her vagina was sore and that P was present when this happened.

15. During cross examination, the mother added to the evidence in her affidavit.  She said that when the child returned home to the mother’s house she gave her two tepid baths in order to reduce her temperature.  The mother gave evidence that during her first bath, the child said to her that the father put something in her vagina and then pulled it out.  The mother then said that during the second bath, the child told the mother’s sister via Skype that the father pulled her vagina apart and put something in there.  When asked about this statement again, the mother said that the child had told the hospital that the father pulled her vagina apart and put something in there.  The mother’s evidence on this issue was not consistent. 

16. The mother waited several days before contacting the authorities about the child’s disclosures.  In cross-examination for the father, the mother said that on 29 March 2015, the child no longer had a fever and it was a normal day.  the child then returned to pre-school on 30 and 31 March 2015.  The first time the mother contacted anyone other than her family in relation to the issue was on Wednesday 31 March 2015 when she called a psychologist and later that evening she called the child protection hotline.  The mother waited on hold for 10 minutes and 43 seconds before hanging up.  The mother said that on Thursday 2 April 2015 the child had started crying and said her vagina was hurting.  The mother said the child’s vagina was red and swollen and that she took a picture of her vagina.  The mother then attempted to contact the child protection hotline.

17. There was a subsequent JIRT investigation.  The COPS Case Report dated 18 May 2015 recorded that JIRT investigation into the initial disclosures did not establish a prima facie case of abuse.

18. Dr C was asked whether, in light of the further affidavit of the mother filed 12 May 2015 and the JIRT interviews, she would make any recommendations to safeguard the child.  Dr C said that she felt that the JIRT interviews demonstrated that the child’s statements to the police were contaminated by many occasions of being questioned and that it would be very unsafe to conclude that something abusive had happened to her.

19. Despite being warned not to question the child, the mother made a later report to police following a subsequent disclosure by the child of abuse that was discussed by the mother with her.

20. No findings adverse to the father are available on the evidence.  However, the proceedings have not yet been finalised and the mother’s allegations cannot be ignored.  Quite the contrary[3].

    [3] See the discussion of the majority about findings of fact in interim proceedings in SS v AH [2010] FamCAFC 13.

The Father’s Allegations against the Mother

1. The father said that on 3 January 2009 the parents had an argument as Ms Rilak ‘wanted to hit P as a method of discipline’.

2. The father deposed that in around 2009 P stepped on the family dog and the mother smacked him six times on the bottom.

3. The father said that in 2010 P said to him “you have no idea what she [referring to the mother] used to do.  When you went out in the evenings, once you’d left, [Ms Rilak] would scream at me for no reason and tell me to go to my room and stay there.”

4. The father deposed that on 4 February 2010 the mother screamed at P saying “You are backward, just go away” after he leant on the bed where the baby was sleeping.

5. The father says on 7 February 2010, after observing him smoke a cigarette, the mother told P that the father was “smoking again and that [he is] going to die”.  The father says that when he confronted the mother about this, she said “I don’t care”.

6. The father deposed that on 14 March 2010 the mother attended his home with a removalist truck and asked the father to sign a passport application, to which he refused.  He says the mother asked the removalist truck to block his driveway and that the mother screamed at P “Your father hit you over the head with a buckle”.  The father said to the mother “Get off my property. You are ugly.”  The father called the police who later attended his home.  There is no evidence that the police took any further action.

7. The father said that the child has told him on multiple occasions that the mother has hit, pinched or screamed at her.  The father said that:

   a)On 24 May 2014 the child said to him “mummy mean to me, mummy always angry and scream at me, Mummy said Dad and [P] no love the child.”

   b)On 28 May 2014 the child said “Mummy smack me”.

   c)On 19 July 2014 the father observed a bruise on the child’s jawline and that the child said “mummy scream, she pinch me and hurt me”.

   d)On 29 November 2014 the child said “mummy scream and pinch me here” while pointing to her jaw bone.

8. The father seeks an order that the mother be restrained from physically disciplining the child.  He told the family consultant that he was concerned about “the mother’s need to physically discipline”.

9. The father deposed that on 21 July 2012 during one of his Saturday visits with the child that at the end of their visit, the mother attempted to remove the child from the swing and became very angry with her.  He said the child began to cry and the mother threatened to leave her in the park on her own.  He said the child refused to walk and the mother dragged the child along.

10. The father deposed that on 29 December 2012 the child was upset at the end of her time with the father.  He said that the mother snatched the child and placed her in the car while she was crying and screaming.

11. The father alleges that the mother has sat in her car or walked past the father’s house on three occasions between 2013 and 2014.

12. The mother denies all allegations of physical violence against either child.

13. At this stage there is likely to be further cross-examination of the parties and in those circumstances I am not comfortable making findings about the father’s allegations.  That is not to say that the father’s allegations can be ignored.

Discussion

1. Dr C stated in her written report that the parents’ attitudes to each other present significant risks of psychological harm to the child because her emotional development has been compromised.  Dr C said that the child has not been able to openly love both parents and that she has not had sufficient time with her father and brother to form robust relationships and secure attachments to them or the paternal family.

2. The COPS Case Report dated 18 May 2015 recorded that the JIRT investigation into the initial disclosures did not establish a prima facie case of abuse.  The police concluded that some of the child’s answers in the JIRT interview were the result of suggestive questioning used by her mother and aunty when they questioned her prior to the police interviews.  The mother was told[4] by the police not to interview the child about sexual abuse disclosures and that any interviewing had to be conducted by a police officer or at least someone independent of the mother.

   [4] Statement by Detective Sergeant L of the E Town Police – exhibit 22

3. There are concerns about the mother’s allegations.  The only allegations of sexual abuse coincided with the point at which the mother declared that she was terminating the father’s contact with the child.  The reasons the mother gave for not making a timely notification of the child’s disclosures are not credible.  The mother said that she did not immediately report the disclosures because she did not want to believe that the father had abused the child.  That makes no sense of the mother telling Dr C and Hospital staff that she first suspected that the father was capable of abusing his daughter when at the point of separation he warned her to be careful of allowing future partners access to the child.  In November 2013 when the child was drowsy on her return from time with the father, the mother took her to a hospital to be tested for drugs the father might have given her.  The mother has consistently believed the worst of the father and it beggars belief that she would not immediately accept a disclosure of sexual abuse from her daughter.  The mother waited five days before contacting the FACS helpline and then made a desultory effort, waiting 10 minutes on hold before hanging up.  It was not until 2 June that the mother made her notification.  The mother has repeatedly questioned the child about abuse allegations and allowed her family to join in.  She was told by police not to question her daughter and thereafter did it again and or allowed others to do so.   

1. Dr C was asked whether there was any potential harm to the child, as opposed damage to the forensic process of seeking to confirm or dismiss allegations of sexual abuse, caused by repeated questioning of the child about sexual abuse allegations.  Dr C said that the concern related to the risk of establishing a false memory of abuse in the child’s mind. In cross-examination on behalf of the father and in circumstances whereby the child had been denied any time with her father or the paternal family since 28 March 2015, Dr C agreed that the child was at grave risk at the hands of the mother.

2. Dr C was asked about the short term options for the child.  Options put to Dr C included:

   (a) a return to the regime under the current orders, with undertakings given by mother;

   (b)changing the residence of the child to that of the father and providing for only supervised time with the mother; or

   (c)doing nothing and leaving the father with no time.

3. As to a situation whereby the child moved to live with the father, Dr C strongly disagreed with the idea that the child would thereafter have no time with the mother.  She thought that if the child was moved to the father, no more than two weeks should go by before the child spent time with her mother, perhaps at a contact centre.

4. During the cross-examination of Dr C on 22 May 2015, the mother said that she did not wish to have these proceedings continue and she subsequently left the Court building.  Dr C was in the witness box during those events and was concerned by the mother’s withdrawal.  To my observation the mother’s conduct was measured and unemotional but in Dr C’s opinion, the mother was upset.  I understood that the mother’s withdrawal from the proceedings added to Dr C’s concerns about the mother’s isolation in Australia.

5. The ICL asked Dr C whether in these circumstances the child was at risk unless she was removed from the mother.  Dr C opined that removing her from her mother risked “completely turning the child’s life upside down”.  She said that the child would not be able to make sense of that situation particularly if (as a result of final orders) she eventually went back to live with the mother.  However, she said that the mother has in the past behaved in a way that placed the child at risk and that in her mind there has been emotional harm done to the child by the mother’s attitude to the father.

6. Without doubt, Dr C assessed the risk to the child with her mother and without any contact with her father, to be grave.  That opinion was not successfully challenged by the mother and I accept it.

7. The mother made a video recording of the child during which the mother asked the child about the father squeezing her hand.  The mother used leading questions.  The exercise was revealing, not in relation to the unadulterated views of the child but in terms of the mother’s behaviour in putting the child in that position.  The mother has questioned the child on several subsequent occasions about alleged abuse by the father.

8. As the evidence stands, there is not an unacceptable risk to the child of sexual abuse at the hands of the father.  Sexual abuse is understandably one of the most grave threats to children.  It is a despicable crime and within families it can happen in private and without the opportunity for corroboration or independent evidence.  Young children are usually not credible witnesses.  For those reasons allegations of abuse are treated carefully and not lightly dismissed.  However, in this case, despite more than five years of highly charged conflict and a mother deeply suspicious of the father and his capacity for bad behaviour, there was not even an allegation of abuse until 2 June 2015.  Despite fearing that the father was capable of abuse, on her own evidence since the child was two weeks old, the mother herself did not act in a timely way when the disclosure was made on 28 March.  Despite a medical examination no physical evidence was found of abuse.  After an investigation including two JIRT interviews with the child, no prima facie case was found on the first notification.  The mother was warned not to interrogate the child about allegations or to allow others to do so and she ignored that advice.  It is alleged that the child made a further and new allegation despite not seeing her father since the date of the first disclosure.

9. Of course, the possibility of abuse cannot be completely excluded but I agree with Dr C that a requirement for supervision of the father’s time is more to avoid the risk of future allegations rather than to protect the child from the risk of abuse.  

10. Dr C described the risk to the child in her mother’s household and without any contact with her father, as grave.

Additional considerations

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

1. Strictly speaking, the child’s wishes are irrelevant.

2. The mother said that she considers the views of the child to be relevant to the proceedings.

3. I disagree.  Whether her views are revealed in the way it was done by the mother or otherwise, the child is too young to have her views given any weight in parenting proceedings.

4. Indeed in my view the mother was far from candid on this issue.  I do not believe that the mother would have respected the child’s views if she said she wanted to spend more time with her father.  In any event, it is a nonsense to suggest that a five year old child would be exposed to ill-treatment because of her wishes.

5. Both parents rely on the child’s asserted willingness to be with them as evidence that she is well cared for by them. 

6. Towards the end of her cross-examination Dr C was asked to express an opinion on the options available to the Court on the mother’s apparent withdrawal from the proceedings on 22 May 2015.  Dr C said that she would have been assisted by hearing from the child about her views in relation to the father.  I understood Dr C to be interested, not in the child’s wishes per  se but in ascertaining whether the child was at that time anxious about visiting the father.  That in turn would be of assistance in predicting how the child might cope with a resumption of her time with the father or a change of arrangements to the effect that she would primarily live with her father.

7. Otherwise, there was no other contention or expert opinion to the effect that the child’s wishes are relevant to the case.

(3)(b) the nature of the relationship of the child with:
(i) each of the child‘s parents; and
(ii) other persons (including any grandparent or other relative of the child);

1. The father says that he has a warm and loving relationship with the child and that they share a close bond.  He says the child is comfortable in his care and affectionate towards him.

2. The father says that P and the child also have a warm and loving relationship and that he has “observed the child throw herself into P’s arms on almost every occasion that she sees him”.  The mother makes allegations that P has been rough with the child.  The father denies that P has ever been rough with the child.

3. Dr C said that during her interviews with the parents, the mother showed her a photograph of the child and P playing when the child was a toddler.  The mother was concerned about the way P was holding the child and saw it as doing some form of harm to the child.  Dr C said that she saw the photograph as well within what she might expect a big brother to do to his very young sister.

4. The Interrelate records include notes by staff referring to warm and affectionate greetings between the child and her father and brother.  The mother was asked about those notes and responded to the effect that the staff are biased.

5. According to the father, the child commenced spending regular time with the paternal grandmother from 23 February 2013.  The father says he has observed they have a very close and loving relationship.  The mother deposed that at the contact visit on 11 July 2010 the paternal grandmother was shaking the child.  The paternal grandmother deposed that the mother asked her not to bounce the child.  Nothing can be concluded from that evidence.

6. The maternal grandmother spent time in Australia with the child from the time of the child’s birth until July 2010 and from 6 August 2013 until early March 2014.  The mother gave evidence that she has Skype communication with her maternal family, presumably her mother and sister, on a weekly basis.

7. Dr C observed an apparently secure attachment between mother and daughter.  the child’s relationship with her father is less robust and Dr C considers that their limited time together has harmed that relationship.  Nevertheless, despite the fact that the mother’s antipathy to the father is extreme, the child has said that she wants to spend time with her father and he has been able to engage with her.

8. In the context of being asked whether the child should live with the father, Dr C said that due to the little time the child has spent and continues to spend with her father, there would not be the security of attachment that would reassure her when a child moves to living with another parent.  She said that if a change of residence was to occur, one would need to make sure that the child is with someone who has a capacity to tolerate the child’s distress and to be able to offer comfort in an appropriate way.  Dr C questioned the nature of the father’s relationship with the child and whether he would be able to provide appropriate support.  She suggested using a family therapist to assist with the adjustment if there is to be a change of residence.

(3)(c) the willingness and ability of each of the child‘s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. Despite a poisonous relationship between them, the parties managed about two years of regular time for the child with both parents.  There were Saturdays when the child did not see her father but by and large, the father’s time was maintained.

2. As the proceedings have developed each of the parents seeks that the child have either supervised time or no time with the other parents.  To that extent and at least for the time being, neither of them is willing to facilitate time with the other parent.

(3)(d) the likely effect of any changes in the child‘s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or

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

1. The father says that if the court makes an order that the child live with him, he intends on consulting with a counsellor at Interrelate called Ms Q.  He says that he would facilitate the child engaging with a child psychologist.

2. When Dr C asked the father about the effects on the child of a change of residency,  the father said that as long as the child feels happy, safe, secure, loved and is with her brother, he felt it would not impact on her heavily.

3. Dr C opined that the child presented as having her current and future development significantly compromised by her parent’s marked conflict.

4. Dr C has not interviewed the parents or interviewed or observed the child since April 2014.

5. On cross-examination Dr C adhered to the concerns she expressed in her 2014 report and said that they have been heightened by what she has read and observed since.  Dr C said that continued lack of contact with the father, paternal grandmother and P is disadvantageous for the child and that the mother’s interrogation of the child could have contributed to false and damaging memories being established in her mind. 

6. When asked about the possibility of moving the child into the father’s care, Dr C observed that a peremptory removal from the mother could be traumatic for the child and very difficult for her to understand, particularly if on a final basis she is to later return to live with her mother.

7. Dr C said that a removal of the child from the mother’s care to a situation where she spent time with the mother on a supervised basis only, would be a loss for the child.  She said the child would feel a loss of her family home and her community and a loss of having the mother around when she needs her.  Dr C said a change in residence would bring about a period of mourning for the child and it would be confusing for the child to know that her mother was alive but not available.

8. If there was a move to the father, in addition to family therapy, Dr C also recommended that the father complete various parenting courses.  I note that the father has completed several parenting courses including the Triple P Parenting course.

9. When told the child had not seen the father for two months, Dr C said that she would expect the child to be experiencing an element of grief.  She said that it would be “essential” for the child to be reunited with her father to prevent the child from going into the “stage of despair that can follow grief”.  She said such a stage would involve thoughts like “Well, did he – did they ever love me?  Do they even think about me?  Am I important to them.”

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

1. The mother lives in the E Town area.  The father lives in Suburb K.  The child attends pre-school in Suburb R.

2. The events of 28 March 2015 were preceded by the mother saying that she could not any longer bring the child to Interrelate at Suburb J for contact with the father.  In that context, the father’s proposal for doing all of the driving is the only practicable proposal.  In an attempt to prevent the parents coming together, that would sensibly involve collection at F School on Friday afternoons and return to pre-school on Monday mornings.

(3)(f) the capacity of:
(i) each of the child‘s parents; and
(ii) any other person (including any grandparent or other relative of the child);

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

1. There is a raft of evidence on this topic.  In the circumstances, suffice it to say that both parents seem capable of meeting the child’s physical needs.

2. Although not arising from abuse, neglect or family violence, Dr C reported that the child is at significant risk of psychological harm because her emotional development has been compromised due to her parents attitude to each other.  She has not been permitted to openly love both parents and has not had sufficient time with her father and P to form robust relationships and secure attachments to them or to the extended paternal family.

3. As the child has lived primarily and for recent times, exclusively, with her mother, the greater responsibility for promoting a healthy relationship with both parents, naturally fell to the mother.

(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child‘s parents, and any other characteristics of the child that the court thinks are relevant;

1. Dr C noted that the child had a temperament whereby she was slow to warm up but had good cognitive competencies.  the child’s expressive language is not fluent, possibly because she is bilingual. Dr C also recommended that the child be assessed by a Speech Pathologist.  The father says he is concerned that the child’s English is delayed.  There is no direct evidence of it but the mother said that she has had the child assessed by a Speech Pathologist who told the mother that she was fine.  The mother told Dr C that she did not know if the child would be emotionally ready for school in 2015 because the mother was concerned about bullying.  She wanted the child to be the oldest in her class and more mature before starting school.

2. The mother was born in Country A of Country S and Country A parents.

3. The father is of Country T culture.  He says that his family celebrate name day, which is a Country T traditional celebration day relating to a person’s name.  He seeks that the child be allowed to spend time with him on his, P’s, the child’s and the paternal grandmother’s name day.

(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child‘s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

1. This provision does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child‘s parents;

1. Dr C noted that if, as the mother contends, the father has not adequately provided for the child financially and by the provision of food then he is not meeting his obligations to her and he does not have a focus on her welfare.  No finding is possible on that issue.

2. Some of the mother’s allegations about the father were not born out in the evidence.  For example, it transpired that far from being thrown onto the street, destitute, she left the former matrimonial home with $60,000 in savings.

(3)(j) any family violence involving the child or a member of the child‘s family;

1. The mother told Dr C that the father was never physically violent to her.

2. I have referred above to the mother’s allegations against the father in respect of the child and P.  There is no corroboration of those allegations.

(3)(k) any family violence order that applies to the child or a member of the child‘s family, if:
(i) the order is a final order; or

(ii) the making of the order was contested by a person;

1. An, AVO was made by the I Town Local Court on 16 April 2015, in terms agreed to by the father.  That order is inconsistent with the orders proposed by the father or the ICL.  The objective facts and the opinion of the single expert support at the minimum a restoration of time with the father.  Orders to that effect, made in the face of the interim AVO would prevail over it and to the extent of the inconsistency, the AVO would be invalid.  The AVO is designed to protect the child.  In my opinion, the presenting level of risk will be adequately addressed by a requirement of supervision by the paternal grandmother or Ms H.

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

1. This is not relevant.

Parental Responsibility

1. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. In the context of this case, s 61DA requires that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her unless there are reasonable grounds to believe that the father or the mother have abused her or engaged in family violence. The evidence is suggestive, including in relation to the mother’s conduct but I am not able to make a finding of family violence or abuse at this stage. However, in interim proceedings, if the Court considers that it would not be appropriate in the circumstances to apply the presumption then it does not apply. In any event, I am satisfied that it would not be in the child’s best interests for her parents to have equal shared parental responsibility, not least because neither parent seeks such an order and the ICL does not propose it.

Living Arrangements

1. The presumption that the parents having equal shared parental responsibility would be in the child’s best interests, does not apply.  Such an order would not be in the child’s best interests on an interim basis.  It is highly unlikely that such an order will be made on a final basis.

1. In that the Court will not make an order that the parties have equal shared parental responsibility, it is not necessary to consider any particular living arrangements. Where the presumption does not apply, s 65D(1) requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parties as it “thinks proper”. What is proper is what is in the best interest of the child - determined by reference to s 60CC of the Act.

2. In her written report, Dr C recommended among other things that:

   a)The child continues to live with her mother.

   b)Parental responsibility to be shared, with the use of mediation when necessary.

   c)The issues of immunisation and surname to be settled during these proceedings.

   d)The child attends pre school in 2014 and school in 2015.

   e)The parents seek the support of a child mental health professional, to test their views about their parenting practices.

   f)The child spend time with her father weekly, day only on Saturdays or Sundays, until she is five and a half, when regular overnight time should commence and incrementally increasing time with the father could then be scheduled to occur on alternate weekends with him.

3. In her written report Dr C stated that she could not support the father’s application for the child to live with him because of her secure attachment to the mother and limited relationship with the father.  However, she said the child must have adequate opportunities to spend time with the father, her brother and her extended paternal family.

4. She opined, however, that it is likely the mother will not comply with orders that she does not consent to and that should the mother fail to make the child available, further consideration will need to be given to changing the child’s residency, from living primarily with her mother to primarily with her father. Of course, the report was written long before the first allegation of sexual abuse.

5. During her oral evidence on 21 May 2015, Dr C said that since her initial recommendation that the child remain with the mother, a number of things have happened that have made her question that recommendation.  Dr C said she was unsure whether the child should remain in a household where she is intruded upon and is not allowed to participate in all activities like the other children at pre-school.

6. Dr C mentioned the isolation of the child in the mother’s household.  Against advice the mother did not enrol the child in school in 2015.  Unlike the aspirations identified at the time of the interviews for Dr C’s report, the mother had not returned to paid employment.  The mother apparently took regular and perhaps all advice from her mother and sister whether in person on their visits to Australia or by weekly Skype events.  The mother made prescriptive requirements of the child’s pre-school insofar as the child not engaging in some activities and partaking of food at the pre-school.  The mother had definite and non-mainstream views about western medicine and vaccination.  I understood that given that isolation and the absence of any time with her father, Dr C was concerned about the child being inculcated with a very negative narrative about him.

7. As to the proposals of the father and the ICL, when asked whether the father’s home would be an appropriate place for the child to live, Dr C expressed concern about the little time the child has spent and continues to spend with her father.  She said as a result there would not be the security of attachment that would reassure her when a child moves to living with another parent.  However Dr C opined that if harm is being done, or there is the potential for harm to be done in one household and the other household is less harmful, then a move to the father’s residence would be satisfactory.  She said that if a change of residence was to occur, one would need to make sure that the child is with someone who has a capacity to tolerate the child’s distress and to be able to offer comfort in an appropriate way.  Dr C questioned the nature of the father’s relationship with the child and whether he would be able to provide appropriate support.  She suggested using a family therapist to assist with the adjustment.

8. Dr C was asked, in circumstances where the child moved to live with her father, should she spend any time with the mother? Dr C said that she would recommend that any time spent with the mother in those circumstances be supervised in a contact centre.  She said this would allow the mother and the child to be monitored and if the situation becomes overwhelming for either of them, an appropriate intervention could be made.  Dr C said that the child should see her mother within two weeks of a change in residence and it will be important for the child to be told when she will be seeing the mother and told things like “Mum still loves you”, “Mum’s just busy at the moment” and “You need to… get settled with dad” etc.

9. Importantly, Dr C said that to continue with the status quo, being no time with the father or the paternal family, would be very harmful to the child.  Dr C said in this situation the child would not be getting the reassurance that her father is there, loves her and wants to be with her.  the child would be getting a portrayal of the father as someone who is a damaging person.  She opined that she would be very supportive of the child seeing the father and the paternal family, however she recommended that it would be wise for someone else to be present during contact to protect the paternal family from any further allegations and protect the child from any further questioning and suspicions by the mother.  Dr C said that at this stage supervised contact in a contact centre would be unnecessary and restrictive.

10. Dr C opined that she would like to see the child spend overnight time or weekends with the father and depending on when the proceedings are finalised, even longer periods of time with the father in his home.  She said it is important for the child to become familiar with the father’s house and have some ownership and understanding that the father’s home is her home too.

11. As mentioned above at 94, during the cross-examination of Dr C on 22 May 2015, the mother said that she did not wish to have these proceedings continue and she subsequently left the court building.  Dr C was in the witness box during those events and was concerned by the mother’s withdrawal.  To my observation the mother’s conduct was measured and unemotional but in Dr C’s opinion, the mother was upset and that concerned her.

12. As mentioned above at 72, Dr C was asked whether, in light of the further affidavit of the mother filed 12 May 2015 and the JIRT interviews, she would make any recommendations to safeguard the child.  Dr C said that she felt that the JIRT interviews demonstrated that the child’s statements to the police were contaminated by many occasions of being questioned and that it would be very unsafe to conclude that something abusive had happened to her.  She then reiterated that the presence of a reputable person around during the time the child spends with the father would be appropriate.

13. As mentioned above at 95, the ICL asked Dr C whether in these circumstances the child was at risk unless she was removed from the mother.  Dr C opined that removing her from her mother risked “completely turning the child’s life upside down”.  She said that the child would not be able to make sense of that situation particularly if she eventually went back to live with the mother.  However, she said that the mother has in the past behaved in a way that placed the child at risk and that in her mind there has been emotional harm done to the child by the mother’s attitude to the father.

Conclusion

1. It is highly undesirable for the Court to change parenting arrangements during a final hearing.  Dr C has identified a grave risk for the child and recommends urgent action.  Dr C is concerned at the child’s isolation and is afraid that without a safe regular and meaningful experience of her father, her relationship with him may be permanently damaged.  There are strong grounds for favourable consideration of the proposals made by the father and the ICL.  There is no basis for allowing the current situation to continue.  Despite some misgivings I decided to avoid the additional risk to the child of separating her from her mother but to restore her time with her father.  Increasing that time to overnight addresses the practical barrier highlighted by the mother and will hopefully assist in the restoration in the child’s mind of a positive image of her father and the paternal family.  It will assist to counterbalance the negative narrative about the father in the mother’s household.  The supervision of the father’s time is more for the protection of the father than for the child’s safety and albeit not automatically enforceable, the injunctions of the mother put beyond argument, her obligations pending the conclusion of the proceedings.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 12 June 2015

Associate: 

Date:  12 June 2015