Roney &Goodwin & Anor
[2017] FamCA 312
•17 May 2017
FAMILY COURT OF AUSTRALIA
| RONEY &GOODWIN AND ANOR | [2017] FamCA 312 |
| FAMILY LAW – CHILDREN – Eldest child – With whom the child should live – Where the child has a loving bond with each parent – Where the child has lived in the primary care of the father since he was two years old or for approximately seven years – Where the mother sought to undermine the relationship between the father and child – Ordered the child live with the father FAMILY LAW – CHILDREN – Eldest child – Parental responsibility – Where the parents cannot communicate effectively – Where the mother places pressure on the child by sharing information with third parties including alleged harmful events that have occurred – Where the Single Expert deposed that the child’s development will be enhanced if one parent has majority of the child’s care – Ordered the father have sole parental responsibility FAMILY LAW – CHILDREN – Youngest child – Equal shared care – Where the child has a primary attachment to the mother and a loving and playful relationship with the father – Where the mother wanted to provide all the care for the child to the exclusion of the father – Where the Single Expert deposed the father has fully committed himself to the father/son relationship and has a gentle and kindly attitude – Where the father has protected the child from the conflict – Ordered the child live primarily with the mother and spend ever increasing amounts of time with the father, culminating in a shared care arrangement FAMILY LAW – CHILDREN – Youngest child – Parental responsibility – Where the relationship between the parents is not as toxic as that which exists between the mother and eldest child’s father – Where the father is tolerant of the mother’s misconduct and remains focused on developing his relationship with the child – Where the Single Expert deposes the parents can share parental responsibility if carefully defined orders are in place – Where the mother took the child, as an 11 month old, to the doctor for a mental health plan – Ordered the parents share parental responsibility except for heath, medical and psychological advice which will be managed solely by the father |
| Family Law Act 1975 (Cth), ss 60CC, 64B |
| APPLICANT: | Ms Roney |
| FIRST RESPONDENT: | Mr Goodwin |
| SECOND RESPONDENT: | Mr McHale |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Gosford Family Law |
| FILE NUMBER: | (P)NCC | 1172 | of | 2016 |
| DATE DELIVERED: | 17 May 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 12 & 13 December 2016 and 15 & 16 December 2016 and 19 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Snelling |
| SOLICITOR FOR THE APPLICANT: | Ramsland Laidler |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Kelly |
SOLICITOR FOR THE FIRST RESPONDENT: | Craney Family Lawyers |
| Mr Bithrey Burke & Mead Lawyers | ||
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Boyd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Gosford Family Law |
Orders in relation to C
That all prior parenting orders made in this Court and in the Federal Circuit Court in relation to the child C born … 2007 (“C”) are discharged.
Residence
That C shall live with Mr Goodwin (“the father”).
Spend time with the mother
That C shall spend time with Ms Roney (“the mother”) as follows:
(a)During school term each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday commencing 19 May 2017;
(b)Upon C commencing High School:
(i)The alternate weekends that occur pursuant to order (3)(a) shall continue but are extended from 5.00 pm Friday until 5.00 pm Wednesday except on the final weekend of any school holiday period in which case the time shall end at 5.00 pm Sunday;
(ii)For one week of the holiday period between end of Term Two and commencement of Term Three; time being otherwise suspended;
(iii)In the Christmas school holiday period, the second alternate weekend falling in the holiday period should extend to a period of one week.
(c)At such other and or additional times as are agreed between the mother and father in writing;
(d)Special occasions:
(i)On C’s birthday (…) and the mother’s birthday (…) from 12.00 noon to 4.00 pm if it is a non-school day and from 5.00 pm to 7.30 pm if it is a school day;
(ii)From 5.00 pm on the day before Mother’s Day until before school the following Monday;
(iii)From 2.00 pm Christmas Day until 2.00 pm 26 December in even numbered years and from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in odd numbered years.
(e)The time C spends with the mother is suspended at the following times, and C shall spend such time with the father:
(i)From 5.00 pm on the day before Father’s Day for the balance of the period;
(ii)From 2.00 pm Christmas Day until 2.00 pm 26 December in odd-numbered years and from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in even numbered years;
(iii)For a period of 7 days on one occasion per year in one of the shorter school holidays at the end of terms 1, 2 and 3, provided the father gives the mother 28 days written notice of his intention to exercise such time;
(iv)For a period of up to 14 days on one occasion per year in the Christmas holidays, provided the father gives the mother 28 days written notice of his intention to exercise such time.
Parental Responsibility
That the father have sole parental responsibility for C.
That the father inform the mother in writing of all significant decisions which require the exercise of parental responsibility and, unless the decision is required to be made in circumstances of urgency, he shall not implement any decision without providing the mother with 7 days notice.
C shall communicate with the mother by telephone each Wednesday between 7.00 pm to 7.30 pm implemented by the mother telephoning the father’s mobile telephone number and the father ensuring that C is available to speak with the mother and in private.
Changeovers shall occur by the father or his nominee who is known to C delivering/collecting C to/from the mother or her nominee who is known to C at the entrance of Woolworth’s Suburb H, I Town.
That each party is to notify the other of their residential address, landline telephone number and mobile telephone number, within 7 days of the date of these orders, and keep the other party advised of any proposed changes to the above details within 14 days of any proposed changes.
That each party is to contact the other as soon as reasonably practical upon C being admitted to a hospital or receiving specialist medical attention while he is living with or spending time with them.
The mother is restrained from contacting C’s school by any means, including telephone, email or other written communication other than to seek information about relevant school events including but not limited to parent/teacher interviews, school concerts or receiving school newsletters.
Subject to directions of the Principal of C’s school, the mother is restrained from attending C’s school other than for the purposes of attending the school functions that parents are ordinarily invited to attend including but not limited to parent/teacher interviews and school concerts.
Each party is at liberty to obtain all details from C’s schools including newsletter, reports, school photographs that parents ordinarily receive and these orders are sufficient authority for that purpose.
Neither party shall denigrate the other in presence of the child or permit any other person to do so within the hearing of the child.
That communication between the parties with respect to parenting decisions is to be by way of text message with telephone communication to be limited to circumstances of urgency.
That notwithstanding the absence of consent by the mother, the father is authorised to approach the Registrar of Birth, Deaths and Marriages in the state of New South Wales and thereafter do all acts and sign all documents necessary to enable the Registrar of Births, Deaths and Marriages in New South Wales to alter the formal record to show C’s name as C GOODWIN.
Pursuant to s 28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW), the Registrar shall register C’s name in the form specified in Order 15 above.
The Independent Children’s Lawyer
The appointment of the Independent Children’s Lawyer is extended for a period of three months from the date of these orders.
The father shall bring C for a meeting with the Independent Children’s Lawyer in order for the Independent Children’s Lawyer to explain the orders to C and to answer any questions he may have.
The Independent Children’s Lawyer shall forward the following documents to the Secretary of Department of Family & Community Services and to the Commissioner of NSW Police:
(a)The Reports of Dr J dated 23 January 2016 in relation to C and D;
(b) These Orders and Reasons for Judgment.
Counselling for C
The Independent Children’s Lawyer shall consult with Dr J to obtain a recommendation for an appropriate source of therapeutic counselling for C and shall advise the father of any such recommendation.
Orders in relation to D
That all prior parenting orders made in this Court and in the Federal Circuit Court in relation to the child D MCHALE-RONEY (known until the date of these orders as D Roney) born … 2014 are discharged.
Subject to Order 32 [allocating sole parental responsibility to the father for health, medical and other therapeutic treatment] the mother and father shall share parental responsibility.
Residence
That D shall live with Ms Roney (“the mother”).
The mother is restrained from establishing a residence for D outside the I Town area.
That D shall spend time with Mr McHale (“the father”) as follows:
(a) For a period of six months from the date of these orders:
(i)Monday 10.00 am to Tuesday 12.00 noon; and
(ii)Each Thursday from 10.00 am until 5.00 pm.
(b) Thereafter until D commences school:
(i)From 10.00 am Monday to 5.00 pm Tuesday; and
(ii)From 5.00 pm Friday to 10.00 am Sunday.
(c) From the time D commences his formal education at school:
(i)From after school Friday to before school Tuesday in each alternate weekend; and
(ii)From after school Monday to before school Tuesday in each alternate week;
(iii)For term holidays for one half of each term holiday:
A.In even numbered years for the first half from after school on the last day of school until 5.00 pm on the mid-point day of school holidays;
B.In odd numbered years for the second half from 5.00 pm on the mid-point day until the start of school in the new term.
(iv)In the Christmas summer holiday period until the conclusion of primary school:
A.For a period of 7 days from 10.00 am on the first Saturday after the end of the school year until 10.00 am on the following Saturday and continuing each alternate week until the last available Saturday of the school holiday period.
(v)Thereafter when D is at High School:
A.For half the holiday period from end of school until 5.00 pm on the mid-point day in even numbered years and 10.00 am on the mid-point day until 5.00 pm on the last Sunday of the period in years where the holiday period starts in an odd numbered year.
Changeovers when not from school in accordance with these orders, shall take place at the front of the Woolworths supermarket located at the Suburb H Shopping Centre in I Town unless otherwise agreed in writing.
Education
The mother shall enrol the child at a school in her local area no later than the year in which he turns 6 years of age (2020).
The mother shall, in the year prior to D commencing school, advise the father in writing of the name and address of the school in which she proposes to enrol D.
The mother shall include the name, address and contact details of the father in the enrolment application.
Each parent is entitled to attend events at the school to which parents are invited or expected to attend, subject to any direction otherwise of the school principal.
The mother shall, and the father may, provide a copy of these orders to the school in which D is enrolled at the time of enrolment.
Health
The father shall have sole parental responsibility for decisions involving the health, medical treatment, dental treatment, specialist medical and psychological advice for the child.
On those occasions when the child requires medical attention the child may be taken by each parent to Dr Y at AA Town unless the father agrees in writing to the child being taken to another general medical practice OTHER THAN in a genuine medical emergency requiring urgent treatment and attendance at the nominated practice would be impracticable.
Other than in accordance with Order 33 the mother is restrained from taking the child to any doctor, psychologist, psychiatrist, counsellor, therapist and any other provider of services relating to the mental, physical and psychological health of the child without the prior written consent of the father.
That notwithstanding the orders above and commencing in 2017 D shall spend time with his parents on the following occasions:
(a)With the father from 4.00 pm Christmas Eve until 4.00 pm Christmas Day in odd numbered years and from 4.00 pm Christmas Day until 4.00 pm Boxing Day in even numbered years;
(b)With the father on the weekend of Father’s Day from 9.00 am on the Saturday until 5.00 pm on the Sunday;
(c)With the mother on the weekend of Mother’s Day from 9.00 am on the Saturday until 5.00 pm on the Sunday;
(d)On 2 May each year for a period of five hours with the parent with whom he is not otherwise living with or spending time as agreed and, in the absence of an agreement, from noon until 5.00 pm.
That communication between the mother and father with respect to parenting decisions is to be by way of text message with telephone communication to be limited to circumstances of urgency.
Both parties are hereby restrained from making critical or derogatory remarks in relation to the other party or member of their household in the presence or hearing of D and shall do all things necessary to ensure that no other member of their household or family makes critical or derogatory remarks about the other parent in the presence or hearing of D.
That each party shall provide to the other party with details of their current contact details including residential address, landline and mobile telephone numbers within three days of any changes.
That each party shall notify the other within 14 days of the details of any playgroup, preschool or counselling regularly attended by D at the time of these orders and each party is restrained from engaging D in any new such activities without the prior agreement of the other party, or Court order.
That D shall henceforth be known as D MCHALE-RONEY.
That within 21 days each party shall execute all documents necessary to facilitate the Registrar, Births, Deaths & Marriages NSW to register D’s name as D MCHALE-RONEY.
That the father’s solicitor forward a copy of these orders to the Registrar of Births, Deaths & Marriages NSW within 28 days, and the solicitor for the mother shall furnish a copy of these orders to the director of any preschool or playgroup and any general or specialist medical practitioner or counsellor currently attended by D within 28 days.
The appointment of the Independent Children’s Lawyer is extended for a period of three months from the date of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Roney & Goodwin and Anor 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: (P)NCC1172/2016
| Ms Roney |
Applicant
And
| Mr Goodwin |
First Respondent
And
Mr McHale
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are applications for parenting orders in respect of two boys, C aged nine and D just turning three years. The children have the same mother but different fathers.
The mother is in dispute with each of the fathers. The applications were heard together.
The Applicant Mother
The mother of both subject children is Ms Roney (“the mother”) aged 43 years.
Her household is said by the mother to consist of herself, her mother Ms K (63) and Mr L (53) a man described by the mother as a family friend. Neither of these two people were called as witnesses.
The younger child, D, is also a full time member of the household.
The older child, C, is present in the household six nights per fortnight and for holidays pursuant to current orders.
The mother asserts that her income is from a Disability Support Pension and Family Tax Benefit. She also does some part time work and is doing further study.
The mother has two young adult children from a prior marriage Ms M aged 22 and Mr N aged 20. They each live independently of their parents.
The First Respondent Father
The First Respondent Mr Goodwin, (“Mr Goodwin”), is 44 years old. He is the father of C, the older child.
His household consists of himself and for eight nights per fortnight, C. The father has a new partner who is an occasional visitor.
The father is employed part-time. He also receives a Single Parent Payment from Centrelink.
The father has two teenage daughters from a prior marriage, O aged 16 and P aged 14. He regularly spends time with the two girls and pays child support as assessed.
Mr Goodwin says he met the mother in 2006. C was born in the second half of the following year.
Mr Goodwin denies that a committed relationship formed between himself and the mother although they lived together for about three months.
The mother says that there was a relationship, which ended in late 2007, due in the mother’s view to domestic violence.
The mother placed C in the care of the father when the child was two years old. The child did not see his mother for at least 11 months thereafter. Mr Goodwin asserts that this was the mother’s choice. The mother asserts that Mr Goodwin took the child to Melbourne to live.
The evidence supports both assertions being true.
The Second Respondent Father
The Second Respondent Mr McHale (“Mr McHale”) is the father of D, the younger child. He is 55 years of age.
His household consists of himself and more recently a female friend of 10 years standing and her 10 year old daughter. There is a bedroom set up for D although he has not yet stayed overnight.
Mr McHale is the biological father of two older children; Q aged 15 and R aged 11. They were conceived by artificial insemination. The parents of those children are a lesbian couple who live in the local area of the father.
Mr McHale has been involved in the lives of those two children since their birth. They refer to him as Dad.
The relationship between Mr McHale and the two women apparently deteriorated after the mother got in contact with them and raised allegations of sexual assault of herself by Mr McHale and her asserted fear that he could harm D.
Mr McHale is presently unemployed. He has some medical problems.
Mr McHale says he met the mother in early 2007, that they commenced an intimate relationship in early 2011 but never lived together.
The mother was pregnant in 2013. That pregnancy miscarried. Mr McHale was probably the father of that child.
In September 2013 the mother learned she was again pregnant. The mother told Mr McHale that she wanted no-one to know who the father of the child was.
In December 2013 the mother ended the relationship and ceased all contact.
In 2014 the child was born. The father first saw the child, by chance, a few weeks afterwards.
In July 2014 he commenced proceedings in the Federal Circuit Court in an attempt to meet, then spend time and communicate with the child.
Relationship between the parties
All three parents live in reasonable proximity to each other in suburbs of I Town.
A co-operative friendship has developed between the two fathers. They bring the subject children together whenever possible.
History of events since litigation commenced
The first application in relation to either of the children was in March 2011 when the mother filed an Initiating Application in the Federal Circuit Court seeking parenting orders in respect of C who was then three and a half years of age.
In her trial affidavit under the heading “Physical Assault of [C] by [Mr Goodwin]” the mother set out allegations she says were raised by the child about his father’s conduct, that he had been kicked and hit by his father on a regular basis, “Dad kicked me down the stairs, it has happened lots of times” and in a conversation at the same time, December 2011, when the mother asked the child about a bruise on his right cheek, the child replied “Daddy rode his bike into me, he didn’t even say sorry”.[1]
[1]Affidavit of the mother filed 4/11/2016, pars 90-95
The mother reports that when she inquired with Mr Goodwin he explained “[C] bumped his head at childcare”.
In April 2012 the child is alleged to have reported that his father slapped him.
The mother goes on to say in her affidavit that in December of that year C had had two footprint shaped marks on his back and reported that his father had kicked him.
The mother referred to “numerous other incidents of abuse reported to me by C and I have reported them to DOCS.” What the mother did not say in that passage of her evidence was that in March 2012 parenting orders had been made by consent which provided for C to live with Mr Goodwin and spend time with the mother, five nights per fortnight, increasing to six nights per fortnight when he started school.
At the time those orders were made C had been living with his father full time since he was a little over two years of age and, by her consent to the arrangements, the mother was implicit in acknowledging that the father was competent to care for the child.
In December 2013 Mr Goodwin said that C disclosed to him that the mother had shown him her genitals. The father did not report this at the time but subsequently made a complaint to the Department of Family & Community Services (“the Department”).
In January 2014 Mr Goodwin said C disclosed to him that the mother had touched the child’s genitals and bottom when he was asleep and the father had subsequently notified the Department.
In 2014 the younger child D was born. Mr McHale contacted Centrelink to try and find information about the child. He also made an application for Legal Aid which was granted. At that time Mr McHale was sharing a house with the maternal grandmother but that arrangement ended in June 2014.
On 31 July 2014 Mr McHale filed his Initiating Application in the Federal Circuit Court pressing for interim orders.
On 12 August 2014 interim consent orders were made for parentage testing between D and Mr McHale to be undertaken.
On 25 October 2014 the mother was informed that Mr McHale was the biological father of D.
On 21 November 2014 the mother filed a response seeking final orders for D to live with her and for she to have sole parental responsibility. On an interim basis she proposed supervised time between D and Mr McHale at a contact centre.
The matter was before the Federal Circuit Court on that day and orders were made: first a declaration that Mr McHale was the biological father of D Roney; and pending further order, that the child live with the mother, that the mother have sole parental responsibility and that Mr McHale spend time with the child at S Contact Centre, initially for the purposes of introducing the child to his father and thereafter on a weekly basis, if possible. There was also an order made directing the parties to amend the child’s birth certificate to include Mr McHale’s name as the father.
During the course of the trial the mother described herself as shocked and disappointed by these orders although the orders for periods of time are consistent with her own proposal.
In December 2014 Mr Goodwin asserts that C stopped making disclosures about his mother and Mr Goodwin concluded that C had been telling him stories that he thought the father wanted him to hear. Thereafter, Mr Goodwin said he noticed the child masturbating and playing with his genitals frequently.
On 23 January 2015 further interim orders were made in the Federal Circuit Court in respect of D: that the parties share parental responsibility; that the child live with the mother; and spend time with Mr McHale for six consecutive visits at the S Contact Centre in accordance with the earlier orders of 21 November 2014 and thereafter in a play area within a shopping centre on three days per week for two hours on each occasion. There was an order for a Child Inclusive Conference.
On 30 January 2015 Mr McHale spent time with the child at the play area of a shopping centre for the first time.
Soon after the two fathers began a friendship and began socialising together.
On 9 February 2015 a report was made to the Department of Family and Community Services.[2] This report was made by the mother; that much is clear in the body of the complaint. Some very serious allegations were raised in respect of the conduct of both the fathers:
Yesterday [C] disclosed to caller [the mother] that [Mr McHale] has been coming over to [Mr Goodwin’s house] 2 - 3 times a week, sometimes sleeping over, since [D] was born and will look after him when [Mr Goodwin] is at work. [C] said that [Mr McHale] will take him to places like the movies and arcades and buy him things and that he’s not allowed to tell caller because it’s their secret. Caller was not aware until yesterday that [C] was having any access to [Mr McHale].
[C] then disclosed that [Mr Goodwin] and [Mr McHale] put their hands down his pants and pat his willy when he is sleeping, adding that [Mr Goodwin] will stand and(sic) the door and watch while [Mr McHale] will cover [C’s] mouth so he can’t yell out and touch him on his willy.
[C] also said that when he can’t sleep he will lock himself in [Mr McHale’s] car. Caller doesn’t know what this means.
[C] said that he is scared for his life and thinks [Mr Goodwin] will kill him for telling caller. [C] was crying during the disclosure.
[2] Exhibit 20
This was a disingenuous complaint for the mother to make. To say that she was unaware until that date that C was having any access to Mr McHale could not have been true. The mother was associating with Mr McHale herself from at least 2009 if not earlier. Mr McHale and C were well aware of each other as were each of the two fathers.
The file was closed with harm unsubstantiated.
In March 2015 the mother began to send long detailed emails to the school which C was attending. They were replete with allegations and information which was entirely inappropriate for the school to have. Some examples[3] of this are as follows:
I have gone past [Mr Goodwin’s] house a handful of times in the last 3-4 months, since November. [C] has been asking me to leave money and food for him around his Dad’s house. [C] also told me he has been trying to climb out of his bedroom window, but it is too high up and small. Along with other stories, I have felt to check what [C] is saying.
I have shown [C] the phone booth on the main road, and demonstrated how to use it to phone 000. [C] said Dad has been stopping him phoning the police.
[3] Exhibit 6 – email dated 4/03/2015, pages 2 and 5
The mother also went into considerable detail about Mr McHale in this way:
JIRT said they did not have enough evidence in regard to [C’s] claims during a 2 week investigation. I felt sick to my stomach, it is unbelievable that no body (sic) could listens (sic) or hear our concerns even as a 2nd time from over a year ago. I am also aware [C] is afraid for his life. The other man, [Mr McHale] (also known as [Mr McHale]), comes from the same childhood background as [Mr Goodwin]. Of extreme violence, abuse and neglect, criminal behavioural etc.
[Mr McHale] has never been able to sustain an adult relationship ever, or been able to work or keep a job throughout his whole life (not even trolley pushing, pamplet (sic) deliveries or places like [T Group] for handicapped people). [Mr McHale] has never been able to drive a car from all of his learning difficulties and childhood trauma.
I have witnessed [Mr McHale] to displayed (sic) pedophilia (sic) grooming and behaviours around [C] and other children.
And this:
I got caught up in a group of people who were rebels, criminals, law breakers, sexual deviants practising under the mask of Tantra, and immature polyamory.
The mother ended this densely detailed five page email with an apology for it:
I apologise for all of this, if we could successfully solution on our own, there would be no need to involve anyone. I feel very embarrassed by the trivial issues, yet over time they can weigh heavily, especially when still not resolved or moved on.
The complaints in that piece of correspondence ranged from difficulties about a library bag to allegations of paedophilia. The Department of Education’s file includes several communications of this type which would represent an overwhelming task for school staff in reading an analysis if undertaken.
On 25 March 2015 a medical certificate was issued in respect of D who was then aged 11 months old. The assessment contained in the GP Mental Health Care Plan which accompanied that certificate sets out the problem identified by the child’s treating GP:
Presenting problem/s mother is going through custody battle with ex partner, currently shares custody of her son with ex partner. Mother is concerned about baby’s emotional state as she has been unable to spend time with him while preparing paperwork for Court case and is concerned baby may react negatively resulting in long term emotional trauma and would like to engage a psychologist early on.[4]
[4] Exhibit 14
It is a matter of some significance that the mother chose to take her infant son to his GP for a Mental Health Plan based on her fear that she was neglecting him through what could be described as an obsessive focus on complaint by the mother, especially to C’s school. It is apparent that the mother was unable to order her priorities to meet D’s needs at that time.
On 1 April 2015 the parties were interviewed by a Family Consultant for a Child Inclusive Conference Memorandum. Consistent with what the mother had been reporting in detailing to the school and notifying to the Department the mother told the Family Consultant that Mr Goodwin had sexually assaulted her and their son C. The mother also alleged that Mr McHale was in “a relationship” with Mr Goodwin.
Many of the themes reported to other authorities were reported to the Family Consultant. The Family Consultant referred to “The mother remained focused on what she often referred to as ‘paedophiles’ and the research that she has conducted in informing herself of their practices”.[5]
[5] Child Inclusive Conference Memorandum dated 1/04/2015, page 2
Importantly, the Family Consultant observed the child to be a well-cared for child who appeared to have reached age appropriate developmental milestones and remained settled with his maternal grandmother and maternal aunt whilst the mother was interviewed for almost two hours.
The recommendation of the Family Consultant was that an Independent Children’s Lawyer be appointed for transfer of the proceedings to the Family Court of Australia and the appointment of a Single Expert if possible. Her final statement which was indicative of the final hearing was this: “There is a virtual litany of allegations and comments made by both parties but more so the mother and these can only be addressed as part of a Family Report due to the volume and complexity”.[6]
[6] Child Inclusive Conference Memorandum dated 1/04/2015, page 3
On 5 April 2015 the mother sent another long and detailed letter to the school. After the Easter holidays in 2015 the mother refused to return C to school.
On 28 April 2015 Mr McHale filed an Application in a Case seeking an order restraining the mother from attending at changeovers in the company of third parties.
On 5 May 2015 Mr Goodwin received a letter from the mother’s solicitor that the mother intended to take the child to Darwin.
In May 2015 the mother did travel to Darwin. Subsequently, Mr Goodwin saw photographs on Facebook of the mother and one of the children with the maternal grandfather. Mr Goodwin was concerned for the safety of C given what he said the mother had told him in the past about the sexual misconduct of her own father.
On 7 May 2015 Mr Goodwin filed an Initiating Application in the Family Court seeking orders for sole parental responsibility for C, residence and time as determined by the Court. At the same time he filed a Notice of Risk setting out his concerns raised with the Department, namely:
a)Child has disclosed to Mr Goodwin that the mother touches his genitals whilst he sleeps;
b)Child has disclosed to Mr Goodwin that the mother has displayed her genitals to the child;
c)Mother has previously stated to Mr Goodwin that the maternal grandfather facilitated the sexual assault of her (as child); The child has had no contact with the maternal grandfather since his birth until the mother took the child to visit him around 3 May 2015; and
d)Mother has taken the child to various professionals and encouraged the child to make false statements regarding sexual abuse by Mr Goodwin.
These allegations have been investigated and dismissed.
On 11 May 2015 the matter came back before the Federal Circuit Court. An Independent Children’s Lawyer was appointed and the matter was transferred to this Court.
On that day the mother was in Darwin and had advised the Court that she intended to return to I Town on 16 May 2015. A Registrar of this Court considered the recommendation of the Federal Circuit Court that the matter be included in the Magellan Protocol but did not consider there were circumstances sufficient to justify such an inclusion noting there was no current JIRT investigation.
On 18 May 2015 the Registrar made directions noting that the mother had attended Court on that day which obviated the need for the Recovery Order which had been sought by Mr McHale in respect of D.
On 12 June 2015 the mother and Mr Goodwin attended a Child Inclusive Conference with the same Family Consultant in respect of C. The Family Consultant identified that the co-parenting relationship had historically been poor and had deteriorated over the past year or so. The evidence certainly supports such a finding.
The Family Consultant went on to say there is extremely poor communication, although according to the father, the mother was texting him hundreds of messages that were irrelevant and rarely ever focused on C.
Of greatest concern was that the Family Consultant noted that:
[C] presented as a very disturbed child with lots of complex issues and behaviours. He could barely sit still and often spoken whilst standing on his head. He immediately said he wants to live with the mother because the father bashes and beats him. He was very nonchalant when speaking about the father beating and bashing him. He continued to say that not only did the father beat and bash him, but cut him, pinched him, slapped him and played with his ‘private parts’.[7]
[7] Child Inclusive Conference Memorandum dated 12/06/2015, page 2
C apparently went on to make a range of complaints about his father, that he had thrown him around the room, that on one occasion the father had cut him and he bled “everywhere”, when asked he said that there had been no need for stitches. On another occasion the father was alleged to have burnt his arm. The Family Consultant asked to see the site of the burn and any scar but the child said that they had completely healed. Unbelievably when the Family Consultant asked the child if the teachers noted his injuries the child said the father made him wear long track suit pants and skivvies. He then added that the father “only cuts his arms in the winter time”.
The child alleged that his father tattooed both himself and his two older half-sisters, that his father touched his private parts, that this happened everywhere in the house and “it’s probably the fifteenth time he has done it.”
This second Child Inclusive Conference confirmed in the recommendation of the Family Consultant that there were complexities and that an expert in psychiatry was required.
On 24 June 2015 the Registrar made procedural orders and the Independent Children’s Lawyer set about finding an appropriate expert.
Sadly on 13 July 2015 C himself made a notification to the Department.[8] It is noted in the records that the caller one was the child C and that the caller two, his mother Ms Roney.
[8] Exhibit 21
C commenced his conversation “My Dad’s been touching me on my private parts a lot.” The departmental officer asked to speak to the mother. The mother came to the telephone but “did not seem to know the reason that C had called and thought it was about C being taken to the hospital by his father.” The mother indicated that the child had told her that his father had taken him to hospital as he had an injury caused by the father. The mother confusingly told the departmental officer that she used to take C to the police but he prefers to go to the family doctor. The mother reported that the child had told her that the father touched him on his private parts. The child was then put back on the telephone and he reported,
I’m sick of Dad touching me on my private parts.
QuestionWhen does this happen?
ChildDad drags me back and touches me on my private parts.
QuestionWhen was the last time?
ChildA week ago.
The mother also made a complaint about the conduct of the child himself, to this effect, “[C] plays a lot of stuff onto [D].” When asked for an explanation the mother said “C displays jealously and anger towards [D] as [Mr Goodwin] has told him that Mum is going to love [D] more than him”.
She went on to say that:
[C] puts his arm around [D’s] neck like he is going to strangle him and he is mean to him. [C] was kissing and cuddling and hugging him too much and that he was just not giving [D] a kiss but ‘sucks on his neck like lovers’ behaviour’. [C] has been holding [D] down a lot and [the mother] can’t ever leave the children alone together.
The mother further said that “[C] is like that with all children”. She gave instances when C was trying to “open mouth kiss a neighbour’s 11 year old daughter and touched her brother on his private parts, but that was years ago and they had moved away.” The record notes “Caller 2 [the mother] doesn’t allow [C] to have contact with other children anymore”.
On 14 July 2015 C was interviewed by the JIRT team. The audio visual tape of that interview was played in Court. It is a challenge to describe the presentation of the child on that occasion. He was physically very restless: He sat with his legs spread eagled across the chair; he moved his hands behind his head so that his elbows repeatedly met in front; he slid around on his chair, finally bending double and sliding his bottom through the gap between the gap of the back and seat of the chair, then recovering his position. He was never still. He sloped forward and wriggled back; he was especially restless while explaining the telephone call he had made to JIRT; on one occasion he was biting his own hand; he positioned himself with his face forward on the front of the chair; he made the statement “It was Mum’s idea to ring”; he moved sideways off the chair, tugging the chair in his direction whilst sitting on the edge of it.
When the subject of being touched on his private parts was raised he put his fingers over his face, his hands over his head and agreed with some emphasis that he was embarrassed. He described being massaged by his mother at home with his belly on the table. There then began frantic rocking by the child for several minutes while he was questioned about the telephone call he made to the Kids Helpline.
At 10.57 am, that is 22 minutes into this excruciating interview, the child was asked about a game he enjoyed playing. During that passage of questioning he sat perfectly still and answered in a direct manner. When there was a move away from that topic he reverted to rocking, wriggling and changing position constantly. This question was asked,[9]
[9] Exhibit 5
Has anyone told you to say something that didn’t actually happen?
Answer:Yes, Mum, only once.
Question:What did she tell you?
Answer:I don’t want to say it.
He was at that point boring his head into the back of the chair.
Child: It could have got Dad into lots of trouble if they’d found out.
At that point the child’s head was through the back of the chair with his bottom and legs wriggling from side to side.
Question:What did Mum tell you to say?
Answer: I don’t want to say it.
Question: How do you feel about Mum?
Answer: Sad.
It could not have been a more clear that the child was under immense internal pressure, wanting to be truthful, wanting not to have either of his parents punished, wanting the interview to be over but wanting to tell the truth, which was in my view, that he had been forced to make an untrue allegation about his father.
On 24 July 2015 the mother filed a Response proposing that the consent orders of March 2012 be set aside, that she have sole parental responsibility for C, that the child live with her and spend time as ordered by the Court and that in the interim, C spend time with his father in a supervised contact centre.
The mother filed a Notice of Risk alleging:
1)During the Child Inclusive Conference interview the child disclosed serious physical and sexual abuse perpetrated by Mr Goodwin;
2)Allegations of sexual abuse of the child by Mr Goodwin have previously been investigated by JIRT but it was closed without substantiation because the child retracted the disclosures. The child told the mother he did this because he felt the investigators did not believe him and because he was “scared they would tell Dad and Dad would kill me.” This indicates serious psychological and physical abuse by Mr Goodwin; and
3)Mr Goodwin has seriously neglected the medical needs of the child ie, teeth care and not seeking medical advice for a neck injury sustained at school.
On 7 August 2015 the mother made a report to police based on concern for the welfare of C. There is an alarming quality to this report. It was that the mother at about 3.00 pm on 5 August 2015 collected her son from school and when she got home noticed that her son had not eaten the meat in his school lunch box. The lunch had been prepared by the child’s father. The mother smelt the meat and stated that it was “off”. The mother said she had obtained advice from another agency suggesting that she report the matter to police as it was a domestic violence incident. The mother requested to speak to a domestic violence legal officer. A domestic violence legal officer was spoken to and appraised; the advice was that a report of the matter would be taken. The mother pressed to speak to a domestic violence legal officer.
The mother was questioned about this incident during cross-examination. She did not resile from the perceived significance of this event.
On 12 August 2015 the mother filed an Application in a Case proposing different arrangements for supervised time between D and Mr McHale.
On 1 September 2015 Mr McHale filed a Response proposing an end to supervised time and progression to short periods of unsupervised time.
On 27 October 2015 the matter came before me. On that day orders were made by consent for the appointment of a Single Expert.
On 28 October 2015 orders were varied to enable D to spend time with Mr McHale every Monday, Wednesday and Friday.
On 13 November 2015 the mother filed an Application in a Case requesting the appointment of a McKenzie Friend which application was dismissed.
On 18 December 2015 the records of D’s general practitioner indicate that the mother was requesting a medical certificate for D for one week. The doctor declined to issue such a certificate and proposed two days and to come back for review if required.
In January 2016 the mother moved to her current residence in Suburb U, a suburb of I Town. Her evidence is that she shares that property with her mother and her mother’s friend Mr L.
On 21 March 2016 Mr McHale filed an Application for Contravention alleging that the mother was not making D available for time and was interfering with such time as he did have.
On 5 April 2016 Mr McHale completed a Parenting After Separation course.[10]
[10] Affidavit of Mr McHale filed 4/11/2016, par 373 and Annexure A2
On 14 April 2016 orders were made joining the two sets of proceedings, Roney and Goodwin and Roney and McHale.
On 12 May 2016 the mother filed an Application as follows:
In relation to [C], that the mother have sole parental responsibility, that the child live with the mother and spend time with the father each alternate Saturday, on Christmas Day and other special times, with telephone communication twice a week.
In relation to [D], that the mother have sole parental responsibility, that the child live with the mother and spend time with the father for two hours each Sunday, on Christmas Day and other special times, with telephone communication once per week.
On 12 May 2016 Mr McHale filed a Response proposing for the first time that D live with him and that he have sole parental responsibility for the child. He set out detailed proposals for time between the child and the mother, escalating when started school.
On 13 May 2016 Mr Goodwin filed a Response.
On 10 June 2016 trial directions were made and final hearing listed in December 2016.
On 10 June 2016 by consent, orders in respect of D’s time with Mr McHale were varied to every Wednesday and Friday from 9.00 am to 12.00 noon. The mother was restrained from using electronic devices to record time between Mr McHale and D at changeover.
The orders for time between each of the children and their respective fathers were complied with.
The mother sent an usually detailed text to Mr Goodwin about C[11] going into close detail about each element of a breakfast he had had; the laundry liquid she had used to wash his clothes; and pages of detail about stationery obtained for school.
[11] Exhibit 9
The mother, also, during school holiday periods, presented the child for changeover at the mid-point of the holiday in his school uniform for reasons which were not immediately obvious to the father, who asked her quite politely to consider the impact on the child of being dressed in his school uniform when school was on holidays.[12]
[12] Exhibits 7, 8 and 9
In October 2016 Mr McHale commenced his Parents Not Partners course.
On 18 October 2016 the mother sent another exceedingly long letter to the school.[13]
[13] Exhibit 6
The mother also sent long messages to Mr McHale setting out her concerns about his parenting style and interaction with D.[14]
[14] Affidavit of Mr McHale filed 4/11/2016, pars 103-324
On 22 November 2016 Mr McHale completed his Parents Not Partners course.[15]
[15] Exhibit 22
On 12 December 2016 the trial commenced and concluded in the allocated time.
At the conclusion of the evidence, orders were made for a significant increase in time between D and Mr McHale, pending delivery of reserved judgment.
Evidence
The documents relied on in respect of the application were as follows:
The Applicant Mother - Ms Roney
(a)Initiating Application filed 12/05/2016;
(b)Affidavit of Ms Roney filed 4/11/2016;
(c)Affidavit of Ms V Roney filed 4/11/2016;
The First Respondent Father – Mr Goodwin
(d)Response filed 13/05/2016;
(e)Affidavit of Mr Goodwin filed 1/11/2016;
The Second Respondent Father-Mr McHale
(f)Response filed 12/05/2016;
(g)Affidavit of Mr McHale filed 4/11/2016;
Reports
(h)Two Child Inclusive Conference Memoranda dated 1/04/2015 (D) and 12/06/2015 (C);
(i)Two Reports of Single Expert Dr J - both dated 23 /01/2016 (C) and (D) respectively.
Oral Evidence
The Applicant Mother - Ms Roney
On the first day of trial counsel for the mother advised the Court that no finding of abuse was sought by the mother and further that it was not the mother’s case that there was an unacceptable risk of abuse of either child by the respective father.
I take this to be an acceptance by the mother of legal advice that there was insufficient evidence to support such findings. I do not consider that the mother accepted at a personal level that the children had been and would be safe in the care of their fathers.
I am supported in this conclusion by the mother’s response to questions in cross-examination about the JIRT interview of C (played in Court). She agreed that the child had recanted on his complaint about his father made to the Kids Hotline but considered he had done so because “it was a poor quality interview”.
Also in her interviews with the Single Expert, which the expert described as complex and difficult, the mother was assessed to believe that there was collusion between the two fathers to abuse C.
It is probable that the mother remained hopeful that the Court would, independently of her position, find that the fathers were both abusive and a source of future risk. During cross-examination when challenged over her application to reduce time between C and his father, the mother said in a somewhat prophetic manner “I’m waiting to see what happens in this case. There’s a lot more to come out”.
It is uncontested that the mother was the primary carer of the older child C, for the first two years of his life.
In December 2009, in her mid- thirties, the mother made a decision to live communally in a spiritual centre in I Town. Although she had attended spiritual centres before C was born[16] the decision to live in this centre appears to have been a turning point in the mother’s life. She no longer wished to have primary care of C, preferring equal shared care between the father’s household and her own. Mr Goodwin was willing to work fewer hours and change the care arrangements in that way.
[16] Single Expert Report (D) dated 23/01/2016, par 9
The two older children of the mother, then aged 14 and 12, moved to live with their own father, spending time with the mother at weekends.
The mother asserts that she moved into the centre for two principal reasons: That she would always be around other people; and that she would be protected from Mr Goodwin’s “anger and violence and controlling behaviours”.
The evidence does not support the second assertion. It was on the initiative of the mother that the father assumed more day to day care of the child. The mother must have been confident in his capacity to meet the child’s needs.
Further, on her own evidence Mr Goodwin came to the centre regularly for seminars and dinners. He sometimes stayed overnight. It was the mother who was eventually asked to leave the Centre by the Director, which the mother did.
It was also around this time that the mother became involved with Mr McHale. She had met him two years previously as a friend of her own mother’s in the context of a cinema group focused on self-development.
The mother describes herself as having had an “interest and passion in self- development and meeting with like-minded people”.
The evidence supports a finding that at least from 2009 the mother was on a quest for greater personal freedom and that she reorganised her life accordingly. The evidence does not support a finding that the mother was a victim of domestic violence perpetrated by Mr Goodwin or anyone else.
In 2012 the mother decided to “practice a lifestyle of being open and having more than one partner.” She describes her personal philosophy this way:
With this there was no ownership or control over each other and those who shared having sex was merely for recreation and not for a committed or monogamous relationship.
It was in the spirit of this philosophy that the mother engaged with Mr McHale.
I conclude that by the time the mother conceived the younger child in 2013 she had moved very far in her thinking from the young married woman with two children that she was when aged in her twenties. By 2013 the mother felt confined and restricted by any conventional expectations around personal relationships.
When she chose to cease her sexual relationship with Mr McHale and he became hostile and angry with her she felt “suffocated and harassed.”
When the mother learned she was pregnant with D she was unsure who the father was. I conclude that she did not expect Mr McHale to be interested in taking on a fatherly role, in the way that he has, and has been increasingly exasperated with what she perceives as his interference in her life with the child.
The mother told the Single Expert that “she thought she would raise D as her own son and did not realise it was going to be ‘another scenario where the child got pulled apart by parents wanting to care for [D]’ ”.[17] The Single Expert concluded that the mother “… had little insight into a child’s need for identity with a father figure”. I accept that observation as consistent with the evidence of the mother.
[17] Single Expert Report (D) dated 23/01/2016, par 15
The Single Expert gave as his view that it was likely that the mother does have personality disorder like traits, although he did not make a diagnosis of personality disorder. It was described this way:
[Ms Roney] appears to have a cluster of traits that place her uncomfortably close to the Cluster B classification of personality disorder (borderline, anti-social, histrionic and narcissistic) with both borderline and narcissistic traits being evident.[18]
[18] Single Expert Report (D) dated 23/01/2016, par 186
He went on the say that medication was unlikely to be of any benefit to the mother or any of the parents. He described the mother as:
A voracious consumer of alternative courses and philosophies on life, but to my mind picks and chooses only what she wants to hear. I doubt her ability to truly respond to information that might challenge her core beliefs of herself as a survivor and a person who has been treated badly by the world, or her need to do her own thing. If therapy were to be recommended for her it would be schema-focussed therapy, but I am pessimistic about the likelihood she would persist in a mainstream therapy program.[19]
[19] Single Expert Report (D) dated 23/01/2016, par 187
After the release of that report in February 2016 the mother did not see a psychiatrist, she has however seen a psychologist organised through VOCAL, an organisation for the support of victims of crime. She identified the crime of which she had been a victim as domestic violence perpetrated by Mr Goodwin. The mother agreed that the police had never been called to her house as a result of any incident of alleged domestic violence. She also identified that she had sought counselling help from a women’s shelter and Brighter Futures (which is a supportive parenting program).
Certainly the extensive detailed emails which the mother sent to C’s school include complaints about the conduct of both fathers. This approach by the mother is consistent with the Single Expert’s evidence that the mother perceives herself as a victim but has not sought any professional advice to see if there is anything about her own self that contributes to her difficulties.
One of those difficulties, although not of the greatest significance, has been the tendency of the mother to write exceptionally long messages, not only to the school but to Mr Goodwin.[20] One example tendered into evidence from September 2016 extended over 14 printed pages and included exerts from a variety of sources about self-improvement, directions and suggestions by the mother about how the father could improve himself and generalised philosophical statements.
[20] Exhibit 7
The mother conceded that such an approach to communication was sometimes counter-productive.
Further, the evidence of the mother is that she receives a Disability Support Pension and the basis for the disability which qualifies her is Post Traumatic Stress Disorder for which she has the counselling earlier referred to.[21]
[21] Affidavit of the mother filed 4/11/2016, par 122
It is evident that the mother has not challenged her own thinking. Mr Goodwin enjoys a relationship with his two teenage daughters. Mr McHale has enjoyed a relationship with his two primary school and high school aged children. The mother trusted Mr Goodwin with the full time care of C in his preschool years and consented to orders in 2012 for Mr Goodwin to provide the majority of care.
My impression is that the mother keeps an “open mind” to all possibilities being true, no matter how bizarre or unusual they are and does not appear to have a filter to enable her to judge what is more or less credible.
For instance, the mother reports that C told her that the father would kill him for telling her about an alleged incident of most serious abuse. This is the incident where C is said to have been alone in the home of Mr Goodwin, his father at work, that Mr McHale would come over and that Mr Goodwin would stand in the door way while Mr McHale put one hand over the child’s mouth and touched his genitals with the other.
The mother caused C to ring the Kids Helpline. He was interviewed by JIRT. Ultimately the mother saw in Court the child retracting the information under the utmost internal pressure about the harm he may have caused to the father at the urging of the mother.
For the same reason, that the mother cannot identify what is likely to be true. The mother regularly told the school through messages and emails what C was saying to her at home and a great many other pieces of information:
Question:Why tell the school?
Answer:It’s difficult when not all the evidence was clear but little signs were coming through.
The evidence of the mother was often slightly mysterious in this way, hinting of a knowledge of further information yet to be revealed. The Single Expert referred to this pattern of the mother’s as “elliptical and not straight forward”.
The mother was taken to the father’s allegations raised by the child to him, that C revealed that his mother had touched his genitals and shown him her genitals. The mother’s own evidence represented quite a clear explanation of why the child might have said those things. The mother readily agreed that when he was a small boy she had helped C to clean his foreskin, presumably by retracting it, washing and so on. Further, that she had had conversations with him about the difference between genitals of men and women and had shown him pictures in books of genitals to explain those differences.
The proposition was put to the mother that it would be a shame if C grew up thinking he was a victim of abuse if he was not. The mother’s answer was unresponsive but instructive, “I think about that all the time. He’s had years of stuff happening so it’s come out.”
Unfortunately for the children, the mother has made a decision to resist physical affection. She agreed that when C asked for a hug she had asked him why he wanted one. The reason for doing so was because she had identified “some weird behaviour with his hugs, sucking my neck, rubbing genitals, rubbing into the body and kissing.”
Likewise, the mother identified that Mr McHale in her view was too physically affectionate with D and reproached him with it in some detail.[22] The mother was accusing Mr McHale of forced intimacy, “[D] does not want to have to keep hugging and kissing you to keep you happy, perform what you are requiring from him. [D’s] personal boundaries are to be respected etc.” At that time D was two years and three months old.
[22] Affidavit of Mr McHale filed 4/11/2016, par 310
The incident where the mother rang the police after discovering meat which she thought was “off” in C’s lunch box is another example of behaviour which is quite difficult to understand. The mother clearly saw a pattern of conduct that others did not. When asked whether her reaction had been an overreaction her response was as follows, “It wasn’t a one off incident. I tried to make it alright in my head then crazy as I look I just have to do something about it”.
Without prior discussion with Mr Goodwin, C has been taken to the W Program organised by X Group, an occupational therapist, an ear, nose and throat specialist, a chiropractor, a speech pathologist in Suburb U, a clinical psychologist, an optometrist for behaviour and sand therapy to address aggression. It is difficult to discern whether the mother was concerned to address real problems that she perceived for the child or was providing venues for him to raise complaints.
Repeatedly through her evidence the mother said words to the effect in relation to abuse of the children, “I believe something is going on. I don’t know what”.
I conclude that the mother is capable of believing and acting on two or more logically inconsistent beliefs. Believing as she says she does, that the two fathers have colluded in the abuse of C, when asked why if she believed that she would not want C right away from Mr McHale, her response was “I’m trying to do this delicately and respectively. [Mr McHale] is [D’s] father”.
There is a real risk of harm in the mother accepting statements at face value from the children and repeating them as truths to authority. For instance, the mother told D’s doctor, Dr Y, that D was touching himself and was influenced by Mr McHale who had paedophilic tendances. The mother’s evidence was that she did not remember saying that but if it was written in the notes she must have said it. It is likely that the mother has told so many people so much information that she is likely to be unable to remember what she said to whom at any particular time.
The mother has provided good physical care to D since his birth and he is a well-developed child. However her focus on looking for signs of damage is not helpful to his development. The mother asserts that her mother and Mr L in her current household assist her in the care of D but they were not called as witnesses and the Court has no evidence about the role of either of them in the life of this little boy. It is essential that the relationship between the child and his father is fostered.
The Maternal Aunt - Ms V Roney
Ms V Roney is a student presently unemployed. She was aware of an allegation in these proceedings that her father, the maternal grandfather of the subject children, had sexually abused her brother. Her evidence is that she had not asked her brother as to whether that had happened. She did say that she had reported an assault on herself to her father and that he had done nothing about it.
This evidence threw some light on the odd decision of the mother to take D to visit her father in Darwin without notice, knowingly contravening orders.
The First Respondent Father - Mr Goodwin
Mr Goodwin works part-time hours. He maintains a relationship for C with his paternal grandmother and two paternal uncles on the Central Coast.
Mr Goodwin denied that he had ceased contact between C and the mother after the mother moved into the spiritual centre. He agreed that the mother had not seen C for 11 months other than by chance. His perspective was that the mother had wanted to “explore her sexuality and femininity”. He said, and I accept, that he had called the mother on numerous times to arrange meetings for her to see C which had been regularly cancelled by the mother. Mr Goodwin described C as crying to himself and having “huge separation anxiety” as a result of the mother’s disconnected attitude towards him in that early stage of his life.
Mr Goodwin was asked what he had done to help the child in that setting. He said he had provided photographs for C to look at. He had also made contact with the maternal grandmother and the mother’s two older children from her marriage and that there had been visits from time to time. However, when the moment came that the mother wanted to take the child back into her care, Mr Goodwin looked for a way of testing her commitment to the care of the child and insisted on a Court procedure, “I’ve seen how cold she can be with [C], I didn’t want that for him.”
Mr Goodwin appeared to be quite patient with the mother’s tendency to send detailed multi-page communications to him, “I pick out the child-focus parts to reply to and ignore the rest.”
Mr Goodwin readily conceded that there was benefit for C in spending time with his half-siblings and his maternal grandmother in the mother’s household and that most likely C enjoyed that time. He also gave evidence that the two subject children spent time together twice through the week and usually on Sundays by arrangement between himself and Mr McHale.
Mr Goodwin had felt shocked when the child told him that his mother had touched his genitals. It appears to be, at best, a naïve reaction. He agreed that C had not been circumcised and there was a hygiene issue for him to learn in relation to retracting his foreskin. The proposition was put to him that he should have rung the mother; instead he chose to believe that there had been misconduct. There is a great depth of mistrust between the mother and Mr Goodwin and each of them has been too willing to interpret that conduct as misconduct when it involves the other. However this has happened on fewer occasions with the father and he has not amplified his concerns in the manner of the mother.
Despite having the majority care of the child the father has tolerated the mother organising a great many attendances for services without reference to him. Unfortunately, he not having seen the need for the appointments, there has been inconsistent attendance. It is necessary for one parent to have the responsibility to organise medical and other specialist appointments for the child.
The two parents have a very different style. In relation to C’s hearing the father took the view that although background noise made it difficult for C to hear, he had a slight hearing problem but a greater problem with just deciding to stop listening. He acknowledged that a machine picked up a hearing loss for the child and that the testing had been organised by the mother but he does not share the mother’s intense focus on the need for professional services. For instance, the mother had had C assessed for Dyslexia; the father is not so sure but he did not want to take him to a second set of doctors, “He’ll end up a hypochondriac if I do, poor kid.”
Mr Goodwin has been very much concerned about the flow of information from the mother to the school. When he was asked whether he thought it would be appropriate to exclude the mother from Parent/Teacher interviews he said this, “With this part of it I’m at a loss. The negativity she has put out there has gone so deep that I don’t know what’s best to do”. I did not discern any punitive attitude in the father at that point, rather genuine concern for the child for whom the private details of his family life was being delivered to school authorities.
Mr Goodwin made it clear that he had kept his relatively new relationship as private as he could. He was reluctant to state the name of his new partner as “[The mother] will seek her out.” There had been some limited contact between C and the father’s new partner. Mr Goodwin said he purposely kept relationships separate from his son so that he would not suffer if the relationship came to an end. He is hopeful that this new relationship will be long term.
Mr Goodwin believes that C is quite capable of doing his school work like any other child and that the number of meetings at the school organised by the mother have become counter-productive.
Mr Goodwin’s preference is to have C immunised and the mother has been opposed to that course on the basis that there was toxicity in all the medicines.
I concluded that Mr Goodwin is thoughtful and considerate about C’s needs: He has deliberately challenged him when C himself has raised complaints as to the likelihood of things being true and would like for C to lead an orderly life at school without constant intervention.
Mr Goodwin generally impressed as having a positive attitude, although he found watching the JIRT video of C’s interview quite sad. He also said, “It was good to see how far he has come from that time”. Despite the accusations and allegations against him, his response was, “I’m hurt by it, not bitter. That’s happened, move on”.
In relation to indigenous culture Mr Goodwin is an aboriginal man and he takes C to what he described as “various things in the indigenous community”. He described C as enjoying engaging in the stories he heard. He is hoping to get C through to adulthood in a “sound manner”. I am satisfied that Mr Goodwin has an enduring commitment to raising C in the best way he can.
The Second Respondent Father – Mr McHale
Mr McHale is presently unemployed. He was last in paid work in 2008. He developed osteoarthritis in a hip and spent some time in a wheelchair, more recently he ruptured an anterior cruciate ligament and was in hospital for a period followed by rehabilitation. He had surgery in 2017 on his hip and the rehabilitation in respect of his knee is ongoing.
Mr McHale described himself as having had serious asthma unmedicated as a child and from experiencing anxiety as an adult around the need for medication but not around the care of the child D. He did have some experience of caring for young children including overnight in the early years of their lives around three or four years.
From the time the mother became pregnant in 2013 Mr McHale has felt an interest and commitment in fathering D.
Initially he sought orders to spend time with the child but his final position for this Court was that the child should live with him and for him to have sole parental responsibility. These orders represent not so much a view that the mother is unable to provide for the needs of the child but rather a concern that the mother has attempted to exclude Mr McHale from the child’s life. Certainly for the first nine months of D’s life there was no contact between himself and the father.
Mr McHale described himself as “stunned” on confirming the pregnancy with D, she [the mother] had said to him, “I don’t want anyone to know who the father of this child is. I want to raise the child in a tribal community where everybody parents the child. I will be home schooling the child. I don’t want you to molly coddle the child”.[23]
[23] Affidavit of Mr McHale filed 4/11/2016, par 16
Mr McHale was hopeful that this was a passing phase in the mother’s life and that she would change her mind.
Mr McHale became extremely concerned as the mother appeared to be more confirmed in her views. He recorded a conversation with her during the pregnancy,[24] an excerpt of which is as follows:
I don’t want anyone to know who the father is.
I am going to lie and deceive this time, I’m going to exploit the situation and I am going to laugh at how people think. People are idiots so I am just going to say it could have been 1 of 5 different guys. I don’t give a shit anymore. Why do I need to acknowledge the father? Why does the father need to be acknowledged unless he is in ego?
I am doing this for myself, I’m not needing a man. I used to believe I needed a man because of social conditioning and programming, you are raised to believe that there is a mummy and a daddy and daddy takes care of the family and all this other bullshit. I’ve been through this enough now to know that I will do this on my own. I don’t need anybody.
The child will not be raised in the old structure. I don’t want this child to go to school. I want this child to be raised completely differently. I don’t want it to know I am its ego mother. I want the child to just feel me as a caretaker.
There was a lot more.
[24] Affidavit of Mr McHale filed 4/11/2016, par 20
By December 2013 the dispute between the parties over acknowledgement of Mr McHale as the father blew up when Mr McHale questioned whether the mother really expected him to lie to friends and family about who the father of the child was.
Four months later in April 2014 the mother sent a text message to Mr McHale which printed out as three A4 pages, passionately rejecting the idea that he had any right to be involved in the life of the child that was due to be born. It took an application to the Court to create any contact between Mr McHale and the child.
Mr McHale described D during those short visits provided for by the orders as enjoying the time, enjoying being read to and never tired other than when he was not feeling well. He conceded that there were moments when the child wanted his mother, particularly when she remained within the environs of the visit and thus being visible to the child.
The father described himself as having lived a different kind of life to others as an adult. He has never smoked, drunk alcohol or gambled and has been rather reclusive. He presented as rather prickly and slightly dismissive in the witness box. Perhaps because it seemed obvious that he was competent to care for the child and wanted to do so.
The other factor is that the excellent relationship that Mr McHale had enjoyed with the two mothers of his biological sons Q and R had deteriorated. Mr McHale attributes this development to the mother making contact with the two women and setting out her fears and allegations.
The two women moved away out of the I Town area and Mr McHale described the relationship between the three of them as having deteriorated as parents. He has been most unhappy about that, but impressively, understood their position. He said this, “In March 2016 we had a meeting where they [the two mothers] said, ‘Now we’ll leave it to the children, they can interact with you if you wish’”. It was at that point that Mr McHale expressed his view that “The mothers are concerned about the allegations and are being cautious. The mothers are angry, they have disconnected the phone. They feel very strongly about it. They are not so sure what’s happened so they play it straight”.
My impression was that Mr McHale was disappointed but understood the cautious attitude that the two mothers were taking to him as a result of some of the things they had been told.
Mr McHale spoke affectionately of the mother’s two adult children, stating that they would be more than welcome to come and visit D in his care, “I was close to Ms M and Mr N for seven years. Now they walk past me and don’t speak.”
Mr McHale worked in a childcare crèche in a club between 1996 and 1998. He has also completed two courses, Positive Parenting and Parents Not Partners.
He had given some thought on how to communicate with the mother, given what he had described as lengthy, irrelevant, abusive emails and texts from her. His habit has been to respond “short and sweet as to what happened.” He felt it would be necessary to confine communication to such short texts and short emails.
Mr McHale identified what he saw as a good relationship between D and C and that it had been that way since the younger child was born. He conceded that he had physical restrictions on his ability to physically care for the child but would manage.
Mr McHale calmly and forthrightly denied allegations by the mother that he had raped her and placed rocks in her vagina. In the same way, he rejected her allegation raised on behalf of C that he had sexually abused C and might molest D. It was these allegations that particularly concerned the two mothers of his older children.
I had the impression that Mr McHale understood the mother despite being frustrated by her conduct. He described her as “Good at nurturing young children but as they get older they become more of a burden”. He amplified that evidence by describing that the mother had started to “Come down on [C] hard” as he got older and that C would sometimes come to him for comfort. In Mr McHale’s view the mother could not cope with his levels of energy. He regards her as having been a bit gentler with D.
Over the years of his knowing the mother Mr McHale had regular contact with her two adult children Ms M and Mr N and also C. Going to the school at the invitation of the mother and he had helped teach C to swim together with the mother at Z Town.
Overall I had the impression that Mr McHale has been a reserved, somewhat solitary man. He regards his closest friends as his family. Many members of his family of origin are now dead.
Over the strong resistance of the mother Mr McHale has patiently pursued his litigation in the Federal Circuit Court and in this Court to ensure that his relationship with D can be sustained. However despite his experience with his own two biological children and involvement with C and the mother’s two older children, Mr McHale has not had the experience of raising a child day to day full time. I am confident that he has a great deal to offer this child and will represent a balancing influence in his life.
The Single Expert – Dr J
Dr J gave evidence on the first day of trial. His two reports, one for each child were of great assistance to the Court in understanding the unusual and inconsistent conduct of the mother and of the relationships that she has had with each of the fathers about whom she is both strongly positive and aggressively negative.
Dr J was asked whether the mother was delusional. He was clear to say that she was not psychotic but that she “moulds fact and fantasy to fit her image.” He considered that the mother has problem regulating her own emotions and boundaries and of most significance, that she identified her own needs and magnified them to being the children’s needs.
The most compelling example is the mother’s inability to identify that although she did not see the need for D to have a relationship with his father that inevitably D himself would be interested to have that relationship.
Dr J considered that the mother has an unstable personality, causing her to have superficial and emotional attachments but not deep attachments and that at the very least she was inclined to withdraw from physical affection which has some significance for her interpretation of the physically affectionate relationship between each of the fathers with their respective children.
Dr J also reflected on the tendency of the mother to go off on tangents and make generalisations to respond with unrelated statements. He had found it difficult to get coherence from the mother in her responses. That pattern of response was on display during the cross-examination of the mother.
In relation to Mr McHale, Dr J described him as attentive but not demonstrative; that when D initiated contact Mr McHale displayed a normal, affectionate response. Dr J said this, “There is nothing feigned about his [Mr McHale’s] desire to be a good dad. He is working on being more involved and attuned”.
Dr J was adamant that there should be more time between D and Mr McHale straight away and is was primarily for that reason that an interim order was made to that effect pending delivery of reserved judgment. Dr J described the benefit this way: “[D] needs benign, trusting, caring experiences with [Mr McHale] which should start straight away”.
In relation to Mr Goodwin, Dr J said that although he had been involved in contact sport there was no evidence of gross neuro-psychological malfunction. He thought that Mr Goodwin had a better ability to organise his thought-stream than the mother whom he described as clever but poor at organising her thoughts.
His clear view was that it was impossible for C to cope any longer with the very different parenting styles of his father and of his mother.
Dr J favoured a restraint on the mother making contact with the school to give C some relief from the information being delivered by the mother in that way. Dr J raised the concern that the consequence of a child being left to sort out their own inner world because of an un-attuned parent, not talking to them at times when they are upset, that that child would develop false memories, it would affect relationships with others and could lead to vicarious PTSD.
Dr J was confident that the bond between C and his father was strong enough to cope with even reduced time, that there was harm in the mother’s undermining of C’s relationships but that he needed to keep contact with his mother with whom he was closely bonded.
In relation to the mother having withdrawn her allegation or at least advising the Court that she no longer sought findings of abuse or risk of harm of abuse, Dr J expressed the view that her conduct had represented a pressure on the children and an apology from her to them would be helpful to them. Ultimately, Dr J concluded that C would settle if he had most of his time with his father and short periods of time with his mother. One parent should have the majority of time and that in his view, it should be the father.
As he had in his reports, Dr J referred to the benefit the mother might draw from Dialectical Behaviour Therapy for which she would need a formal diagnosis of Borderline Personality Disorder through the mental health service. However, on the pessimistic side of that recommendation Dr J reflected that the mother “Doesn’t take what she doesn’t want from external supports.” It will be entirely a matter for the mother whether she decides to take up that recommendation knowing that Dr J predicts a benefit for the children if she does so.
Dr J referred to the fact that in his view the mother had attempted an exclusive relationship with D, to be the whole of D’s world, but that that approach definitely did not meet D’s needs, especially his need for a relationship with his father.
Dr J was adamant that the mother’s practice of changing C’s clothes at school to “get rid of dirty, bad energy” should cease occurring, it being humiliating for the child. The school more conscious of that fact than the mother, had kept some changeover clothes for C at school.
Dr J was rejecting of the mother being a traumatised person but provided this explanation of the mother’s inner world:
The mother has a belief that she is a traumatised person so therefore her children have to be traumatised. It’s integrated into her personality, she needs to present as a traumatised person. There may be trauma there, I don’t know. She has an interest in seeking out therapies but there is not much prospect of change.
Dr J was confident that although Mr McHale had some odd habits that his previous behaviour suggested he would be supportive of the mother and that although Mr Goodwin was critical of the mother, he would for C’s sake support contact arrangements.
Overall, Dr J’s primary message was that the mother has very poor boundaries and it is very difficult for her to contain her opinions from the children and third parties. Further, that it would be an improvement if all parties became less focused on themselves “less egotistic” and more focused on the children.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Parental Responsibility
The relationship between the mother and Mr Goodwin is such that they cannot communicate effectively. The mother sends long, rambling, critical messages to the father, rather than short, focused messages about real matters for consideration. The father [Mr Goodwin] ignores the majority of the content and responds to actual issues. The mother is then offended and suspicious.
C has been put under terrible pressure by the mother’s habit of sharing information with him and with third parties who touch his life which should not be shared. Part of that information is the mother’s own views and feelings about the possibility of harmful events having occurred. It has left C confused and feeling responsible for having caused harm to his father and having brought attention on himself.
C has lived with his father for the majority of time since he was two years old.
I am satisfied that he should continue to live with his father and having accepted the evidence of Dr J, that his development will be enhanced if one parent, namely the father, has the majority of his care. This will reduce the impact of very different parenting styles.
In those circumstances, it is appropriate that the decision making is by Mr Goodwin and further, that the mother is restrained from involving herself in the school other than for parents’ events which would please and support C.
In relation to D, D is just three years old. The current relationship between the mother and Mr McHale, although not good, is not as toxic as that between the mother and Mr Goodwin. This is largely because Mr McHale has been tolerant of the mother making extreme, unsubstantiated allegations of misconduct about him. Rather he has stayed focused on developing a relationship with D under difficult circumstances.
I accept the evidence of Dr J that Mr McHale will be supportive of the mother and that with some difficulty, but with carefully defined orders, they can share parental responsibility.
I accept that opinion but consider that the area of health, medical treatment and psychological advice for the child should be managed solely by Mr McHale. The evidence that the mother took 11 month old D to the doctor for a mental health plan based on her concern that he was suffering from her lack of attention, through focus on the paperwork for this case, is, but one example of, the problem.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
C
C does have a loving bond with each of his parents. Their criticism of each other and the mother’s undermining of the father’s relationship with C, has been most unhelpful to him. He was described by Dr J as a “very disturbed child” at the time of interview.
Evidence suggests that things have settled down for him a little since then. However, the evidence also supports his need to maintain his relationship with both his parents.
There was a period between ages two and three for C when he saw very little of his mother and she made no great effort to make contact. She was reluctant to spend much time with him for reasons personal to her.
I am unable to determine and Dr J was unable to determine the impact on that period of separation for C.
D
D has his primary attachment to his mother who has provided most of his care. The problem being that she has wanted to provide all of his care to the exclusion of his father.
D has developed a loving and playful relationship with his father and the evidence is that he will benefit from a shared care style arrangement. This will enable him to maintain a meaningful relationship with both his parents.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
There is a need to protect the children from psychological harm. It was harmful to C to be directed by his mother to call the Kids Hotline to make a very serious complaint about alleged conduct by his father. The evidence of the JIRT interview shows just how adversely affected C was by that whole exercise and his recantation of the allegation.
However, the mother has at least formally stepped back from allegations that the children have been abused, or are at risk of harm of abuse, by the fathers or either of them and I do not consider that the need to protect the children outweighs the benefit of continuing the relationship with the mother as well as each of the fathers.
Additional Considerations
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
C
To Dr J, C expressed the view that he wanted to spend time with his mother and significantly reduce time with his father. After a period of time being observed with his father, C reiterated his wishes but softened his stance towards rejecting his father.
Dr J concluded that C was strongly influenced by his mother and had come to believe that he had been abused by his father and/or Mr McHale. Dr J described it this way:
[C] is utterly confused by the situation he finds himself in and lacks the cognitive and emotional skills to gain any independence from his parents’ battle. To that end, I think [C’s] wishes were facile and he lacked any ability to appreciate what the implications of his wishes might be.[25]
[25] Single Expert Report (C) dated 23/01/2016, par 183
In those circumstances I do not place any weight on the child’s expressed views and in any event, C would not have a memory of living full time with his mother.
D
When D was observed by the Single Expert he was about 20 months old. He was observed to be quite happy to see his father and Mr McHale was observed to be organised and attentive to the child’s needs.
After a period of separation, the child when reintroduced to his father “… positioned himself close to [Mr McHale] and appearing to get some sense of support and comfort from [Mr McHale’s] returned presence.”[26]
[26] Single Expert Report (D) dated 23/01/2016, par 135
In that moment Dr J observed no affection between father and son but in his oral evidence Dr J indicated that he did see displays of affection soon afterwards. He further observed that D’s lack of distress when his father left the room suggested that he had gained a reasonable attachment to his father.
Given the limited time they had spent together, it must be attributed to the father’s ability to meet the emotional needs of the child in those short periods of time in his care.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The children have a range of family members with whom they have important relationships.
C has two young adult siblings, the children of his mother’s first marriage and the evidence, although scant, suggests that he has a somewhat closer relationship with his 20 year old half-brother than his 22 year old half-sister.
C regularly sees his paternal grandmother and two paternal uncles who live on the Central Coast, particularly in holiday times.
C has a loving and affectionate relationship with his half-brother D and the children are regularly brought together in parks and other appropriate settings by their two fathers who have established a good working friendship through these proceedings.
C also has two teenage sisters, the children of their father’s first marriage and he has enjoyed regular time with them all his life.
There is also a developing relationship between Mr Goodwin and his new partner, who has a nine year old daughter. There is a developing relationship between C and that child.
D may be considered to have at a least a potential relationship with the father’s two biological children, Q and R. That will depend on the restoration of the relationship between Mr McHale and the two mothers of those boys and the decision that those two women make about whether or not D should be in any way a part of their children’s lives.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
The mother has made the majority of decisions for both children.
In respect of C she has done so oblivious to the fact that he lives primarily with his father and that there should have been a consultation process about all decision making, not simply a passing on of information after decisions had been made.
There was a period in C’s young life when the mother spent less time with him between the ages of two to three and a half which probably reflects her confidence that the father was well able to take care of him during that period.
The mother in relation to D took a position from the time of her pregnancy with D, that she would make all of the decisions to the exclusion of Mr McHale.
In the early stages of supervised time between the child and Mr McHale, the mother was unhappy and anxious about the arrangements. Her preference continued to be sole authority and she struggled to understand why there was any need for Mr McHale to be a part of the child’s life. This is a significant matter.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
C
C may well react with sadness or disappointment to a reduction in time between himself and the mother, however I accept that there will be a stabilising effect for C if he is exposed to the parenting approach of just one parent, with short periods of regular time with the other parent, creating certainty for him about what the rule and boundaries of his education and life at home will be.
D
In relation to D, time between himself and his father was increased to three full days a week. Given the evidence of Dr J, that time should be increased to include overnight time. By age three D was predicted to be very well able to cope with and enjoy overnight time in his father’s home, progressing in graduating stages until he starts his formal education to five nights a fortnight and half school holidays with his father.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Capacity is a very significant issue in this matter.
The expert evidence suggests that there is fragility in the mother’s personality which has some serious impact on the children. Because she perceives herself as a victim and a traumatised person the children are at risk of feeling precariously traumatised. Because there are personality traits of narcissism for the mother, she is unable to distinguish between her needs, wishes and views and the needs, wishes and views of the children. Thus her capacity, to meet particularly their emotional needs, is impaired by her inability to understand, particularly the need for relationships which the mother herself does not value, that is with each of their fathers.
The mother either does not understand, or understands and cannot control, her impulse to share information with the children and strangers which should not be shared. The long detailed emails to the school, including allegation involving third parties and intimate details of the parties’ lives at home should not have been sent. The mother takes the view that when she has a concern she sits on it until she cannot resist putting the information “out there”.
It is particularly important for each of the children that they have the other parent to turn to in circumstances where their mother has those limitations.
Mr Goodwin is described by the Single Expert as rather rigid in his thinking which predicts conflict potentially for C in adolescence, but at this time, Mr Goodwin is attuned to the child’s needs particularly for other relationships with family, involvement in indigenous cultural events and knowledge and a steady and stable education, being on time, getting his homework done, participating in activities.
Mr McHale was described by the Single Expert as having a relationship like no other he had had with D. He had fully committed himself to the father/son relationship and has a gentle and kindly attitude to the child. Despite what he has suffered as a result of it, Mr McHale has also been quite forbearing with the mother and there can be no other explanation but that he is protecting the child from conflict. He has had the opportunity to see the impact on C of conflict between Mr Goodwin and the mother and, it seems to me, has learned from it.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
C is a nine and half year old boy, described by the Single Expert as
A psychologically damaged young boy. … he needs supportive therapy, not focused around claims of sexual abuse, in order to assist him integrate the experiences he has had of the maladaptive parenting he has experienced over the last couple of years. He will also need assistance to develop psychological resilience and come to terms with whatever the outcome of the current Court is. [27]
[27] Single Expert Report (C) dated 23/01/2016, par 196
The observations of the Single Expert in that regard accord with the evidence that C struggles to distinguish between truth and lies and even more importantly, struggles to identify his own feelings as opposed to what his mother believes his feelings are or should be. Counselling of the type recommended should be undertaken by the father and I consider that he will be compliant with that kind of supportive, settling, therapeutic approach.
D is now just three. Happily he was assessed by the Single Expert as “… not yet showing patterns of difficult behaviour, although being exposed to possessive parenting traits may likely cause ongoing problems for him.”[28]
[28] Single Expert Report (D) dated 23/01/2016, par 188,
The Single Expert notes that he was an exuberant child but no formal diagnosis of behavioural disturbance appeared necessary. Dr J stressed the importance of the socialising of D and I consider it likely that the father will be particularly attuned to ensuring that D spends time with other children and well intentioned adults.
If the child is an Aboriginal child or a Torres Strait Islander child
C is an aboriginal child and his extended paternal family are well placed to educate him and help him to establish his identity within his community.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The mother has taken responsibility for D to extremes in wanting sole responsibility to the exclusion of D’s father. She had come to a philosophical position that such a relationship need not have priority and that other people, even C, might be role models for D that there would be no disadvantage if Mr McHale did not play a part in his life.
The mother has apparently been exploring philosophical motions of self-development and independence but has not understood that the children, especially a very young child such as D, has independent needs which are significant to healthy development.
In relation to C, the father when asked by the mother to do it, moved from full-time employment to part-time employment in order to facilitate a shared care arrangement with the mother when she wished to move into the spiritual centre. Since then the father has accepted the majority of care of C. He has been sensitive to the fact that C suffered in that early stage when his mother was more focused on personal issues and has been supportive of the child regularly spending time with his mother, despite her attitude of disregarding his views and most significantly, of raising very serious allegations of criminal misconduct without heed to the consequences.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
The mother has described herself as a victim of family violence and has given evidence that she has received counselling through VOCAL on that account. Further, that she suffers from PTSD for which she receives a disability pension.
There is no evidence before me to support perpetration of family violence by Mr Goodwin or anyone else on the mother. There are no family violence orders. There is no evidence of criminal records for any party involving violence.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
There is some risk that the mother will refuse to co-operate with Mr McHale in making parenting decisions other than in respect of health which will be the sole province of Mr McHale about D.
Conclusion
There would be some benefit in these two siblings growing up together considering the special bond that exists between them, despite the six and a half year age gap. However, I have come to the conclusion that C will do better in the primary care of his father and D will do better staying primarily in the care of his mother, moving to a shared care arrangement when he starts his full time education at school.
Despite the dismissive attitude of the mother to Mr McHale his role in D’s life will be most important especially for allowing socialising with other children and a range of enjoyable activities.
C shall live with his father and spend time with his mother on alternate weekends and when he commences High School for holiday periods and other special occasions.
Mr Goodwin will have sole parental responsibility to ensure decision making happens in a timely and non-conflicted way.
D shall continue to live with his mother and spend ever increasing amounts of time with his father. The parents are to share parental responsibility other than for decision making around health, medical treatment, dental and psychological treatment.
Orders are made accordingly.
I certify that the preceding two hundred and eight three (283) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 17 May 2017.
Associate:
Date: 16 May 2017
Key Legal Topics
Areas of Law
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Family Law
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