Salvati and Donato (No.2)
[2009] FMCAfam 883
•20 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SALVATI & DONATO (No.2) | [2009] FMCAfam 883 |
| FAMILY LAW – Parenting – unacceptable risk of harm or abuse – whether father has sexually abused child – whether maternal grandmother and mother pose risk to child with persistent belief child has been abused in absence of objective evidence – whether child’s residence should be changed – issue of supervised contact with maternal grandmother. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA Evidence Act1995 (Cth), s.140 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4. |
| Applicant: | MS SALVATI |
| Respondent: | MR DONATO |
| File Number: | SYM 7919 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 6 July 2009 |
| Date of Last Submission: | 7 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cook |
| Solicitors for the Applicant: | Verekers Lawyers |
| Counsel for the Respondent: | Ms Friedlander |
| Solicitors for the Respondent: | Kells the Lawyers |
| Solicitor-Advocate for the Independent Children’s Lawyer | Mr Meehan |
| Solicitors for the Independent Children’s Lawyer: | JPM Legal |
ORDERS
The Father have sole parental responsibility for the Child [X] born in 2005 subject to the following:
(a)The Father should consult the mother about major long term decisions relating to [X]; but
(b)If the Father and Mother are not able to reach agreement about the same, within a reasonable time frame (having regard to the nature of the decision to be made), the father’s decision will be final.
The Child live with the Father.
The Mother, for a period of 12 months attend at her own cost on a consultant psychiatrist, Dr John Kasinathan (or if he is unwilling or unable to assist, on a consultant psychiatrist nominated by the Independent Children’s Lawyer), at least every three months for assessment and monitoring in relation to an emerging psychotic disorder (if any).
The report of the said psychiatrist is to be provided to the Independent Children’s Lawyer as soon as practicable after it has been prepared. The Independent Children’s Lawyer is then at liberty to:
(a)Make a copy available to the father; and
(b)Relist the matter before Federal Magistrate Altobelli on seven (7) days’ notice if any matter arises in relation to the welfare of [X] out of the said report or reports.
Commencing from Wednesday 26 August 2009, and until [X] commences school, the Mother spend time with [X] from after preschool, or from 4.00pm should [X] not be attending preschool, each Wednesday to 10.00am on Saturday each week.
The Father is not to enrol [X] in preschool on more than one day that she spends with the Mother each week.
Upon [X] commencing school, the Mother spend time with [X] from after school on Wednesday to before school Tuesday each alternate week.
The Mother is also to spend time with [X]:
(a)On Mother’s Day between 10.00am and 4.00pm if it is not already a contact weekend; and
(b)On the Mother’s birthday between 4.00pm and 6.00pm if it is a school day, and 2.00pm and 8.00pm if it is on a weekend, if the Mother’s birthday is not already on a contact day; and
(c)During odd numbered years, on Christmas Eve from 12 noon to Christmas Day at 12 noon, and during even numbered years on Christmas Day from 12 noon to Boxing Day at 12 noon.
(d)For one-half of each school holiday period and if the parents are unable to agree as to which half, during the second half of each school holiday period.
(e)The Mother’s time with [X] is suspended during the Father’s half of all school holiday periods, and on the Father’s birthday between 4.00pm and 6.00pm if it is a school day, and 2.00pm and 8.00pm if it is on a weekend when [X] would be with the Mother, and on Father’s day between 10.00am and 4.00pm if it is on a weekend when [X] would be with the Mother.
Where changeover pursuant to these orders does not take place at [X]’s school or preschool, then the Mother is to collect [X] from the father’s residence at the commencement of contact, and the Father to collect [X] from the Mother’s residence at the conclusion of contact.
The Maternal Grandmother Ms S is to spend time with [X] for two hours per fortnight at a supervised contact centre or in another supervised setting as agreed between the parents, such time to continue until:
(a)
The maternal grandmother has caused a report from
Dr Kasinathan (or if he is unwilling or unable to assist, a consultant psychiatrist nominated by the Independent Children’s Lawyer) at her own cost to be written indicating the maternal grandmother is not suffering from a psychiatric disorder, or she is being treated appropriately and [X] is not at risk of emotional or psychological harm if [X] spends time with the maternal grandmother unsupervised.
(b)The report in 10(a) above is to be provided to the mother, the father and Independent Children’s Lawyer before any proposed change to the time the maternal grandmother spends with [X].
(c)Any time the maternal grandmother is to spend with [X] following the report is only to be as agreed between the parties, or by Order of the Court.
The Mother is to ensure the maternal grandmother Ms S is not present when the Mother spends time with [X] except as per Order 10 above.
Both parties are hereby restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.
(b)Discussing the proceedings or the relationship between the parents or any other party the presence or hearing of the children or permitting any other person to do so.
Parties have leave to relist this matter before me as regards the interpretation and implementation of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Salvati & Donato is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 7919 of 2006
| MS SALVATI |
Applicant
And
| MR DONATO |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X] born in 2005 who is currently three years old. The applicant is her mother who is 25 years old and who works on a part-time basis [in the Retail Industry]. The respondent is her father who is 30 years old and works [in the Sales Industy]. They both live in the Illawarra region of New South Wales. [X]’s parents commenced cohabitation in June 2005, [X] was born about five months later, and the relationship ended in June 2006. Proceedings first commenced in the Family Law Courts in 2006 and have continued almost unabated since then. Both parents make serious allegations about the other that go to quite fundamental issues of [X]’s safety and welfare whilst in the care of each parent. There is plainly a high level of distrust and a low level of communication between the parents for most of [X]’s life. It is in this context that the Court is required to make orders that are in the best interests of [X].
Background
Like many other cases in the Family Law Courts, this case has developed a life of its own and bears little resemblance to the case that commenced in 2006 as a relatively simple dispute about how much time [X] would spend with her father. After separation [X] remained in the care of her mother and this continued right up until the end of the hearing before me on 7 July 2009. On that date I made interim orders the effect of which were to place the principal care of [X] with her father. These reasons for judgment explain why it was necessary to make those interim orders, as well as why it is necessary to make these final orders.
A short history of the orders made in this case will provide some context and background.
| Date | Event/Order |
| 1 June 2007 | Final Orders made by Altobelli FM. Orders are for overnight time with the Father, on a staggered basis based on [X]’s age and include time on birthdays, holidays etc. Restraints are placed on the maternal grandmother’s attendance at changeover, denigration of the other parent and their family and consumption of alcohol. Both parents are to attend a post-separation parenting course. |
| 26 June 2008 | Father files Contravention Application |
| 20 August 2008 | Contravention Application first return date. Orders for parties to attend a Child Dispute Conference and mother to file and serve an Application to vary existing orders. |
| 28 August 2008 | Mother files Initiating Application to amend existing orders |
| 1 September 2008 | All previous orders for the father to spent time with [X] are suspended. Father to spend supervised time with [X]. Independent Children’s Lawyer is appointed. Both parents restrained from denigrating the other parent or their family and discussing the proceedings with or on the hearing of [X]. Parents are to use a communication book. |
| 23 October 2008 | Interim consent orders: father to have supervised time with [X], a Family Report is ordered. |
| 13 March 2009 | Part 15 Expert is appointed to prepare a report. The father is to pay the costs of this report. List of approved supervisors for the father’s time with [X] is expanded. |
| 17 June 2009 | Part 15 Expert’s Report released to parties. |
| 6 July 2009 | [X] to be brought to the Court childcare facility on 7 July 2009. |
| 7 July 2009 | Interim Orders: [X] live with the father from the conclusion of the day’s proceedings, and spend each weekend and Tuesday overnights with the Mother. The mother is not to permit the Maternal Grandmother to be in [X]’s presence without the Mother or the Maternal Grandfather being present also. The Maternal Grandmother is not to be responsible for [X]’s care at any time. The Mother is restrained from discussing the proceedings or the Father’s family or any person’s relationship with the Father with [X] or in her hearing. The Mother has leave to file and serve an affidavit setting out the details of the implementation of her proposed Order 5 within 21 days. The Father has leave to relist regarding any issue arising from said affidavit within seven days of it being served. |
The mother’s allegations about [X]’s abuse at the hands of her father arose after the orders were made for overnight time. On 1 September 2008 all contact was suspended. Given the allegations, and pending further investigation, it was of course necessary to treat this matter conservatively. Supervised time commenced from October 2008.
Three expert reports were obtained during the course of this matter. The Family Report of Melissa Starling dated 23 April 2007 pre-dates the allegations of abuse and thus played no role in the final proceedings before me. This report clearly informed the making of orders for overnight time. The Family Report of regulation 7 Family Consultant Dr Janina Szyndler is dated 3 February 2009, and the Part 15 expert’s report of Consultant Forensic Psychiatrist Dr John Kasinathan is dated 16 June 2009. Both reports have a significant influence in this case and will be discussed in detail below. Indeed one of the key issues in this case from the mother’s perspective is what weight the Court should give to Dr Kasinathan’s report which was, from any viewpoint, quite damaging to the mother’s case.
The evidence in the mother’s case consisted of her own affidavits and from the maternal grandmother Ms S, and her sister Ms H. The evidence in the father’s case consisted of affidavits from himself, the paternal grandmother Ms D, paternal grandfather Mr D, the father’s fiancée Ms K, and Ms K’s mother, Ms T. Not all of the witnesses were required for cross-examination.
By the time of the final hearing the case had changed significantly, primarily because of the evidence of Dr Kasinathan. Instead of their being concerns about an unacceptable risk of abuse in the father’s household, the focus had changed to whether there was an unacceptable risk of abuse in the mother’s household. Right at the very end of the proceedings the mother indicated that she intended to move away from her parents and she was given and indeed took the opportunity to provide evidence about this. Because of the nature of this case, it is necessary to set out at length the proposals of the mother, father and Independent Children’s Lawyer as put at the final hearing.
Mother’s Proposal
1. That the parents have equal shared parental responsibility in relation to the child [X] born in 2005 (“[X]”).
2. That the Mother shall have sole responsibility for making decisions about the child’s day to fat care, welfare and development during time the child lives with or spends time with the Mother.
3. That [X] live with her mother.
4. That [X] spend time with the father as follows:
i) That for the next 3 months from the date of these orders, on each Saturday from 10am to 5pm, with supervision.
ii) Thereafter for a further 6 months, each Saturday from 10am to 5pm without supervision.
iii) Thereafter, in the absence of any concerns of abuse, to overnight contact from Friday 6pm to Saturday 5pm.
iv) When the child attends school:
a. Every second weekend from Friday 6pm to Sunday 6pm.
b. one night during the off week.
5. Within 2 weeks of the date of this order, the Mother and [X] are to reside away from the residence of Ms S.
6. The Mother is only to permit [X] to be in the company of Ms S when Mr S is present. Such restriction is to remain in force only until Ms S obtains a psychiatric report as to her mental health.
7. The mother to attend upon an appropriately qualified psychiatrist on a quarterly basis for a period of 12 months to address the possibility of the mother developing a psychosis.
8. In the even the parties have a dispute as to long term issues concerning [X] they are to organise mediation through Relationships Australia.
Father’s Proposal
1. That the father have sole parental responsibility for the child [X] (“[X]”) born in 2005.
2. That [X] live with the father.
3. That the mother attend upon a court appointed psychiatrist and follow all reasonable directions and take all medication prescribed by that psychiatrist.
4. That until the mother’s treating psychiatrist provides to the father a report stating that the psychiatrist believes that the mother is not suffering from an underlying psychosis or in danger of developing an underlying psychosis that the mother spend time with [X]:
(a) From 9am to 5pm on Saturdays supervised by the paternal grandfather Mr S;
(b) Thursdays from 11am to 1pm supervised by the father, Ms K or Ms D;
(c) At other times as agreed by the parties.
5. that the father undertake to contact the mother if [X] becomes distressed and to allow the child to spend time with the mother supervised by the father, Ms K or Ms D.
6. That the maternal grandmother Ms S undertake to attend upon a court appointed psychiatrist and follow all reasonable directions and take all medication prescribed by that psychiatrist.
7. That until the maternal grandmother’s treating psychiatrist provides to the father a report stating that the psychiatrist believes that the maternal grandmother is not suffering from an underlying psychosis or in danger of developing an underlying psychosis that the maternal grandmother spend time with [X]:
(a) For 2 hours a month at a registered contact centre such time to be supervised.
8. That the costs of the mother and the maternal grandmother attending a psychiatrist be met by the mother and/or the maternal grandmother.
9. That the costs of the maternal grandmother spending time and communication with [X] at a contact centre be met by the mother and/or the maternal grandmother.
10. That after the mother’s treating psychiatrist provides to the father a report stating that the psychiatrist believes that the mother is not suffering from an underlying psychosis or in danger of developing an underlying psychosis that the mother spend time with [X]:
(i) Before [X] commences school:
(a) Every alternate weekend from 5pm Friday until 5pm Sunday
(b) Every other alternate week from 9am Thursday until 5pm Friday
(c)For half of the school holidays
(d) For at least 4 hours on special days including [X]’s birthday, the mother’s birthday, Mother’s Day, Easter and Christmas.
(ii) From [X] commencing school:
(e) Each alternate weekend from 5pm Friday until the commencement of school Monday
(f) Each other alternate week on Wednesday from the conclusion of school until the commencement of school Friday
(g) Half the school holidays
(h) For at least 4 hours on special days including [X]’s birthday, the mother’s birthday, Mother’s Day, Easter and Christmas.
11. That until the maternal grandmother’s treating psychiatrist provides to the father a report stating that the psychiatrist believes that the maternal grandmother is not suffering from an underlying psychosis or in danger of developing an underlying psychosis that both the mother and Mr S give undertakings that they will not allow the maternal grandmother to be present while the mother is spending time and communicating with [X].
The Independent Children’s Lawyer’s Proposal
1. The father is to have sole parental responsibility for the child [X] born in 2005.
2. The child is to live with her father.
3. The mother, for a period of 12 months attend upon a consultant psychiatrist, Dr John Kasinathan, at least every 2 months for the assessment & monitoring in relation to an emerging psychotic disorder (if any).
4. For a period of 12 months, the mother spend time with [X] as follows:
a) From 9am to 5pm each Saturday, and
b) From 11am to 1pm each Thursday
c) Such time is to be supervised by the paternal grandfather Mr S, or such other person as agreed between the parties.
d) In the event that the parties cannot agree as to an appropriate supervisor, then such time is to be supervised at a contact centre located near to the child’s residence at a convenient time.
5. At the completion of the 12 month period in order 4 above, the mother is to cause a report to be prepared by the consultant psychiatrist in relation to any underlying psychosis, or emerging psychotic disorder:
a) Such report is to be forwarded to the father, the mother and the Independent Children’s Lawyer.
6. In the event that such report does not disclose the mother is suffering from a psychosis or emerging psychotic disorder, then the mother spend time with [X] as follows:
a) Each alternate weekend from 5pm Friday to 5pm Sunday
b) Every other alternate week from 9am Thursday until 5pm Friday until the child commences school, and thereafter from the conclusion of school on Wednesday to the commencement of school on Friday.
c) For half of each school holiday period.
d) For at least 4 hours on special days such as [X]’s birthday, mother’s birthday, Mother’s Day, Easter Sunday.
7. The mother is to ensure the maternal grandmother Ms S will not be present with the mother while the mother spends time with [X] as per orders 4 and 6 above until the report is provided in 8(a).
8. The maternal grandmother is to spend time with [X] on one occasion per month for a period of 2 hours with such time being supervised at a Contact Service or other agreed supervised setting.
a) Such time to continue until the maternal grandmother has caused a report from the consultant psychiatrist indicating the maternal grandmother is not suffering from a psychiatric disorder, or she is being treated appropriately and [X] is not at risk of emotional harm if [X] spends time with the maternal grandmother unsupervised.
b) The report in 8(a) above is to be provided to the mother, the father and Independent Children’s Lawyer before any proposed change in the manner of [X] spending time with the maternal grandmother.
c) The time, following the report, would only be varied either by agreement of the parties, or by the Court.
I propose to discuss the evidence of the experts separate to the other evidence. The evidence of the key witnesses will be discussed in the context of the relevant s.60CC considerations, even though there is the risk of some overlap with the expert evidence in this regard.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of Time
Like many disputes relating to children, this is (at least in part) a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomenon in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental Conflict and Shared Parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Sexual Abuse Cases
A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what the relevant law is:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
The Expert Evidence
Dr Janina Szyndler
Dr Szyndler is a Family Consultant who provided a regulation 7 Family Report dated 3 February 2009, released to the parties on 12 February 2009. She was not called to give further evidence or to be cross-examined at the final hearing. Her report is very useful not only because of the background it provides, but also because it is a useful benchmark from which to measure the responses of the mother and maternal grandmother to the expert evidence they were receiving during the course of this hearing. Dr Szyndler is a Clinical Psychologist.
In relation to the maternal grandmother Dr Szyndler observes (paragraphs 15-19, 37-8)
15. Ms S (aged 52) and Mr S (aged 55) attended the assessment. Mr S did not say a great deal in the assessment, other than that he supported his wife and daughter in relation to their concerns about [X]. He looked after [X] whilst I spoke to the two women.
16. Ms S appears to have strong views about the situation in relation to [X]. She expressed a clear conviction, based on what [X] has said to her, that [X] had been sexually abused by her father and has outlined her concerns in her affidavit. She stated that she had been shocked by some of the things [X] had said and had notified her concerns repeatedly to DOCS. It would appear that she believes that the abuse occurred during the period that [X] was having overnight stays with her father.
17. Ms S stated several times that she could not understand why matters had not been taken further as a result of the information she had provided DoCS and implied that there may have been some attempt not investigate them fully. She stated that she was aware that Ms K worked [in the Law Enforcement Industry] and she also stated that another member of Mr Donato’s family worked for the police (Mr Donato denies this). It appeared that she was implying that they may have exerted some influence into how the matter has been dealt with.
18. Ms S also outlined her concerns about various events that had occurred during the family law proceedings including that her daughter did not receive a copy of the first family report until some six months after it had been written, that there were inconsistencies in the report in terms of the interview dates and mention of affidavits which Ms Salvati denied all knowledge of having written. Despite this Ms Salvati stated that the actual content of the report had been correct. Ms S also stated that when she and Ms Salvati had gone to view the file at the Sydney registry not all the contents were there. It would appear that she believed that some of the material may have been deliberately withheld from her family. These various incidents appear to have made her somewhat suspicious of the family law process.
19. Ms S stated that [X] was frightened of her paternal grandmother and she had seen [X] recoil from her. She stated that she had observed that [X] appeared happier to spend time with her father since this had been under supervision but she did not know why this was the case bearing in mind her distress when overnight contacts had been taking place.
…
37. Ms S and Ms Salvati state that they believe [X] has been sexually abused by her father. Ms Salvati has also stated in her affidavit of 28 August 2008, that [X] has said that she has been hit by her paternal grandmother. Ms S stated that she has made numerous reports to DOCS outlining her concerns, which she says are based on things that [X] is alleged to have said to her, and to her daughters. In total the maternal family appear to have made 23 reports to the DoCS helpline between June 2007 and July 2008 outlining their concerns.
38. Ms S referred [X] to Ms N, Clinical psychologist. [X] saw
Ms N for nine appointments between February 2008 and October 2008. Ms N describes the appointments as focussing on teaching [X] “self protective behaviour”. Both her mother and grandmother attended the appointments with [X] and were present throughout the sessions. Ms N states that [X] made a disclosure to her at the time of the last appointment on 14th October 2008. This is outlined in her affidavit. Ms N stated that she did not specialise specifically in the area of child abuse.
As part of her evaluation Dr Szyndler states:
The situation has been exacerbated by the involvement of the wider family, most particularly by the role played by Ms S, who appears to have become more negative about Mr Donato and his mother since 2007 and been instrumental in pursuing allegations of [X]’s sexual abuse. Ms S shows some evidence of believing that there may be a conspiracy to pervert the course of justice and to make her daughter appear mentally unstable
Dr Szyndler recorded the father’s concerns about the extent of the maternal grandmother’s influence on the mother (at paragraphs 25-6):
25. Mr Donato spoke about how Ms Salvati, under what he believed to be the influence of her mother, repeatedly making allegations about the way [X] was cared for whilst she was in his care. He stated that he will now change [X] into clothes he has bought for her as soon as she is in his care on Saturday and then change her back into her original clothes when she goes back to her mother to avoid accusations that he is not keeping [X] sufficiently clean etc.
26. Mr Donato stated that he believed that without the influence of Ms S, Ms Salvati and he would have been able to resolve matters in relation to their parenting of [X] and that the situation would never have deteriorated to this extent.
The following observations of [X]’s interaction with family members was recorded:
44. During my observation [X] appeared to play happily with members of her both her maternal and paternal family. I did not observe her to show any signs of fear or distress at seeing either her father, his partner or mother. She took her father’s hand when it was time for her to spend time with him in the assessment and appeared pleased to see him. She appeared happy to spend time with him and appeared to enjoy playing with him, as well as with his mother. She did not seek any reassurance from me or show any distress at being separated from her mother. When [X] was with her father she briefly asked on three occasions where her mother was. She appeared to be happy when told that she was outside. [X] did to attempt to leave the room to find her mother or to avoid activities with any members of her paternal family. [X] also stated several times that she wanted to go to her father’s house. Her father told her that that was not possible. She also asked where her paternal grandfather was.
In her evaluation Dr Szyndler states:
47. It would appear that [X] was showing signs of significant distress before and after spending overnight time with her father between June 2007 and March 2008. Although the maternal family appear to be of the opinion that this was related to [X]’s alleged sexual abuse by her father, it is not necessarily an indication of abuse. At the time [X] started spending nights at her father’s home she was 17 months old and had not been in the overnight care of her father for some time. It is not unusual for children of this age to find prolonged separation from their primary carer, in this case her mother, distressing. It is also highly likely that, as any child of this age would do, [X] reacted to the anxiety, anger and antagonism which she would have sensed from her mother and her family prior to the visits. She would also have directly observed the conflicts or unpleasantness which occurred at handover.
48. It is also very easy in situations of high conflict for parents to take things that young children say out of context. It is possible that once Ms Salvati and Ms S began to believe that [X] was being abused by her father they were more likely to interpret anything she said in that light.
49. I would support both parties concerns about [X]’s long term emotional psychological wellbeing being at risk as a result of the antagonism which is occurring between her mother and father and the wider families. If [X] has been abused in some way by her father, her ongoing contact with him would naturally cause concern for her mother and her family, and they would like any other family seek to curtail it. However, if she has not, then their ongoing beliefs and statements about these alleged events will also be very damaging to [X] and to her relationship with her father.
50. It is very difficult with a child of [X]’s age, in the absence of any physical or forensic evidence, to categorically state whether or not sexual abuse has occurred. The fact that all of [X]’s alleged disclosures have been made to her maternal family, who have a clear antagonism towards the father and paternal family, make their statements less reliable. It is difficult in the circumstances to also place any significant weight on [X]’s apparent disclosure to Ms N. [X]’s statements occurred at the culmination of Ms N’s work with [X], after she had been presented with a range of material in relation to self protective behaviours and seven months after all unsupervised time between [X] and her father had stopped. She also attended all the appointments with her mother and grandmother present throughout. The fact that JIRT have not taken up the case would suggest that they do not feel there is sufficient evidence to take matters further. Based on this and on my observation of [X] and her father, I would not recommend reducing the amount of time they spend together.
51. The allegations make the situation very difficult for
Mr Donato because any unsupervised time he spends with [X], at least until she is older and more articulate, would potentially place him in a difficult situation if further allegations were to be made by the maternal family. However, restricting supervision to one paternal relative who cannot, because of her own family, commit herself to being available every weekend in the long term appears to be unreasonable. The assessment would indicate that other members of Mr Donato’s family, who clearly have [X]’s welfare at heart, would be capable of providing supervision.
52. Since the allegations cannot be categorically ruled out, [X] also needs to be protected from any possible harm from her father. Supervision at least whilst she is still young, would ensure this.
The Family Report recommends equal shared parental responsibility, that [X] live with her mother, and then spend time with her father depending on the Court’s findings about the allegations made by the mother and the maternal grandmother.
The Family Report is significant even at a final haring when it was, perhaps, overshadowed by the later report of Dr Kasinathan, a Consultant Forensic Psychiatrist. The Family Report is very balanced and should have raised in the minds of the mother and the maternal grandmother at the very least an alternative hypothesis to explain [X]’s behaviour and disclosures i.e. that is was in some way related to the very high level of conflict between the parents and wider family, and that [X]’s observed interaction with both sets of families was inconsistent with the behaviour of an abused child. The report should have also raised in their minds concerns about the maternal grandmother’s delusional behaviour. It is significant that in February 2009 the mother received an expert’s report that, whilst being appropriately cautious and reserved in relation to the factual issue of whether abuse had in fact occurred, would nonetheless, in the mind of a reasonable observer, have provided a measure of reassurance about these matters and about [X]’s safety.
I record here because it is relevant, though not necessarily to do with expert evidence, that in February 2009 the mother also received another piece of evidence that should have provided to her and the maternal grandmother a measure of reassurance but which seems to have perhaps fuelled the latter’s belief in the “grand conspiracy in the DOCS, JIRT inaction” (to use the words of the mother’s counsel in his closing submissions: transcript 7 July 2009 p43 lines 23-24). The mother had obtained by way of a Freedom of Information Act application a copy of an internal DOCS email dated 18 April 2008 between a Casework Specialist and another DOCS officer. This email is annexed to the mother’s affidavit sworn 12 February 2009. I is useful to set out the entire email :
Hi [name omitted],
I have reviewed the reports for [X] (over 20) and 3 SAS1’s and outlined my thoughts (I haven’t included recommendations, as discussed).
My observations are as follows:
-Reports commenced after the parents separated.
-Reports were sporadic until the 22 may 2007, apparently the time when Family law Court proceedings commenced.
-Reports have been frequent and consistent for the duration of the court proceedings.
-Almost all reports have been from the maternal grandmother.
-The concerns in the reports have slowly escalated in their seriousness.
-The disclosures have apparently become more detailed as more reports are made.
-The disclosures are questionable for a child of [X]’s age.
-Alternative theories for some behaviours have not been considered by the reporter (eg could [X] be so anxious before contact because she is picking up on the adults behaviour and tensions in their relationship?).
-The reporter has failed to follow the advice of taking the child to the doctor on some occasions.
-The mothers role is unclear, and the extent as to which she is aware of the maternal grandmothers reporting is unclear.
-[X] has seen a psychologist and is apparently attending child care.
My concerns are:
-The above factors in the context of the tone of the reports, the additional irrelevant information, and the judgmental statements raise concerns about the motivations of the reporter and the validity of the concerns.
-Whilst it cannot be ruled out that there are real risk of harm concerns, it appears likely that the reported concerns are in the least exaggerated and related to a motivation to obtain care of the child through the family court.
-For DoCS to investigate risk of harm would be intrusive and due to [X]’s age would likely not result in any disclosure that could be actioned.
-It is probably [sic] that the reports will continue to be received for the duration of court proceedings, it is probably [sic] that they will continue after this if the father was awarded any custodial rights.
-For this situation to continue and for the adults relationship to remain unaddressed could result in [X] experiencing psychological harm and behavioural issues.
Hope this helps!
[name omitted]
Casework Specialist
In evidence the mother told me she didn’t know what to think about the recommendations in the email, though she though it unusual that it was being made without seeing [X] or speaking to anyone else. The context of this evidence is the suggestion I put to the mother that the document “raised the possibility that perhaps someone uninvolved had taken a step back and had a look at it” (to use the words of the mother’s counsel in closing submissions p43, lines 33-34). Clearly the mother did not have the same interpretation of this document. Indeed her counsel in closing submissions suggested that because the email did not rule out the risk of harm (just like Dr Szyndler’s report in that regard) the mother was entitled to continue to hold the belief that she did.
The reasonableness of the mother’s beliefs from February 2009 onwards is a significant issue in this case. Another more reasonable, objective and less suspicious parent would, after reading Dr Szyndler’s report and the DOCS internal document, have taken some reassurance from these documents in the sense that each presents in its own way alternate hypotheses to explain [X]’s behaviour, as well as containing the views of independent persons, one of whom is clearly an expert, that raised serious doubts about the allegations [X] had made.
Dr John Kasinathan
Dr Kasinathan is a Consultant Forensic Psychiatrist who was appointed as Part 15 Expert on 13 March 2009 and who provided a report dated 16 June 2009, released to the parties 18 June 2009. He conducted psychiatric assessments of the parents, [X], the father’s partner, and both sets of grandparents on 15 and 29 May 2009. He had available to him all of the evidence that had been filed up to that date together with further material provided by both the Independent Children’s Lawyer and maternal grandmother.
In relation to the mother Dr Kasinathan found (lines 137-153):
Mental state examination revealed a young female wearing fashionable clothes, hoop earrings and makeup. There was no psychomotor agitation or retardation. Her mood was reported as “OK”. Her affect (the external expression of her mood) was initially anxious and later somewhat odd and fatuous. Her speech was normal and though processes were appropriately organised, although she sometimes had latent replies to the author’s questions. Thought content revealed her concerns that Mr Donato had allegedly previously sexually abused [X], though she did not believe this to be occurring currently. She was concerned that the police had not investigated her mother’s allegation of [X] being sexually abused and said, “It could be because Mr Donato’s girlfriend works for the police”. She denied suicidal or homicidal thoughts, she denied any perceptual disturbances. In the group interview, Ms Salvati appeared to follow her mother’s lead.
From the information available to the writer, it is the writer’s opinion within reasonable medical certainty that Ms Salvati did not present with a psychiatric illness or mental disorder, as per DSM-IV-TR (American Psychiatric Associate 2000). However the mental state irregularities described regarding Ms Salvati’s affect and thought form may indicate either an underlying psychosis of the future development of a psychotic illness.
In relation to the maternal grandmother the expert found: (lines 157-190)
Ms S’s first words in her individual interview were, “They have lied, our solicitors refused to put written evidence before the Court”. She believed that Mr Donato was a “puppet of his mother; whatever his mum says, goes”. Ms S reported, “[X] told us she will be fostered”. With regards to the sexual abuse allegations, Ms S said that “her ([X]’s) disclosures were made by her, there is no doubt in my mind, she was a mess (referring to [X]’s alleged distress at handover)… no one would help us”. Ms S said that [X] would scream at bath time and had allegedly said “poo-daddy stinks”. In December 2007, Ms S asked [X] “Did someone hurt your lily?” and [X] allegedly replied “yes. Dadda” (Ms Salvati’s affidavit at [83], page 10, 28 August 2008). Ms S reported that she also believed that Mr Donato had taken [X] to doctors somehow in relation to the alleged abuse. Because of this Ms S said she had “looked up [X]’s Medicare history”. Ms S denied having any symptoms of a mood disorder.
Ms S denied being on any medication or having any significant medical problems. She denied any drug and alcohol problems. She denied any past psychiatric history. In particular she denied any past psychiatric treatment, psychiatric admissions or any prior suicide attempts. A family history of mental illness was denied. She denied any forensic history.
Mental state examination revealed a neatly dressed middle-aged female with intense and suspicious eye contact. There was no psychomotor agitation or retardation. Her mood was reported as “OK”, though her manner was guarded. Her affect (the external expression of her mood) was restricted to the point of being blunt. Her speech was normal. However her thought processes revealed derailment and tangential answers to questions. Thought content revealed intense beliefs that Mr Donato had allegedly previously sexually abused [X] and was continuing to do so. She believed that the police and Department of Community Services (DOCS) had deliberately not investigated the allegations, because of a conspiracy within the police and DOCS, “someone local on the inside, someone they (the Donato party) are connect to and sympathetic with”. She denied suicidal or homicidal thoughts. She denied any perceptual disturbances. Ms S had no insight into her fixed beliefs and saw no need for treatment.
From the information available to the writer, it is the writer’s opinion within reasonable medical certainty that Ms S has a psychiatric diagnosis, as per DSM-IV-TR (American Psychiatric Association 2000) consistent with Delusional disorder. The disorder has probably been present for the past 18 months at least.
Dr Kasinathan found there to be no psychiatric illness or mental disorder present in any of the other persons interviewed.
His observations of [X] are set out below: lines 330-352
[X] presented as a happy, young girl of three and a half years of age. She appeared to present within the physical and emotional developmental norms expected for a child of her age. She was seen interacting with the maternal family members and also with Mr Donato (father) and Ms K (father’s partner). She happily played with some of her toys in the waiting room and also in the interview room. She spoke spontaneously to members of her family throughout my observations of her. [X] was appropriately initially shy towards the writer (as the writer was a stranger), but she gradually became more relaxed with the writer during the assessment process.
[X] seemed independently attached to her mother and her father. [X]’s interaction with her father was carefree, appropriate and without any fear, anxiety or distress. She took her father’s hand when it was time for her to spend time with him in the assessment and looked happy to see him. She happily showed her father a toy helicopter and a “Dora the Explorer” toy. [X] certainly appeared to enjoy her father’s company. When [X] was with her father, she did not ask for her mother and did not attempt to leave the room to find her mother.
[X] confirmed to the writer that no-one was hurting her or ever had hurt her. She specifically denied that her father had hurt her. When the writer asked how [X] had come to say “Poo-daddy”, [X] acknowledged that Ms S and/or Ms Salvati had taught her this. She looked slightly afraid when admitting this, though her fear was not directed at her father. At this point, she looked towards the waiting room (where the maternal party were waiting) and this appeared to represent possible fear of reprisal from Ms S and/or Ms Salvati. She was verbally comforted by her father and [X] responded favourably to his, soon returning to playing with her toys with her father. [X] indicated that she enjoyed spending time with her father and would like to see him more often.
Dr Kasinathan then set out his opinion and recommendations: lines 353-420
The key issues in this case involve persistent allegations that the father is sexually abusing [X], which are primarily being driven by the maternal grandmother. There was a marked absence of any substantial evidence of sexual abuse from the father: [X] interacted in an age-appropriate, anxiety-free manner with her father, there was no forensic evidence and the allegations were not investigated by DOCS or the police.
The main areas of definite psychopathology lay with the maternal grandmother. From the information available to the writer, it is the writer’s opinion within reasonable medical certainty that Ms S has a psychiatric diagnosis as per DSM-IV-TR (American Psychiatric Association 2000), consistent with delusional disorder. This disorder has never been treated, is not currently being treated and Ms S presented as insightless as to the need for psychiatric treatment. Unfortunately, Ms S’s delusions directly impact upon [X] and [X]’s relationships with her father, the father’s partner and the paternal grandparents.
A second area of possible psychiatric pathology lay with the mother. Although Ms Salvati did not present with a definite psychiatric disorder, as per DSM-IV-TR (American Psychiatric Association 2000), the mental state irregularities revealed in
Ms Salvati’s affect and thought form may indicate an underlying psychosis or the future development of a psychotic illness.
Ms Salvati certainly presented as easily influenced by Ms S and Ms Salvati’s affidavit reflected Ms S’s involvement in most of [X]’s apparent disclosures that were probably significantly prompted by Ms S herself (for example, see Ms Salvati’s affidavit at [83], page 10, 28 August 2008). However, Ms Salvati did not subscribe to the more paranoid beliefs held by Ms S.
For [X], to be repeatedly spoken of and/or directly told that she is getting abused (when it is untrue) is in and of itself abusive to [X]. From the information available, it seems more likely than not that [X] was coached or instructed by either the mother and/or the maternal grandmother, to make repeated apparent disclosures of being sexually abused. This culminated in apparent disclosure by [X] to psychologist Ms N on 14 October 2008. The writer concurs with Dr Janina Szyndler (Clinical Psychologist, Family Report, 12 February 2009) that little weight should be given to these alleged disclosures, as they were made in the presence of Ms S and Ms Salvati, toward the end of sessions with psychologist Ms N looking at “sexual self-protective behaviours” and seven months after unsupervised time had ceased.
RECOMMENDATIONS
Due to Ms S’s untreated psychiatric illness that directly impacts upon [X], Ms S should only have supervised contact with [X] and this must be currently limited to a few hours per month. Given Ms S’s significant influence on Ms Salvati and to a lesser extent Mr S, the supervising person would need to be someone else, probably an external supervisor. Once Ms S has been treated by a Consultant Psychiatrist with antipsychotic medication and the fixed beliefs have remitted fully (the writer anticipates that this would take at least three months), then Ms S may have gradually more supervised contact with [X], if Ms S’s Treating Psychiatrist were to agree. Treatment by only a General Practitioner and/or psychologist is insufficient as these professionals are not adequately experienced or trained to monitor and treat serious psychotic illnesses such as Delusional disorder.
Although Ms Salvati does not currently present with a definite psychiatric disorder, her mental state irregularities suggest either an underlying psychosis or the future development of one.
Ms Salvati’s tendency to adopt some of Ms S’s fixed beliefs without questioning is itself concerning, especially as these beliefs impact seriously upon [X]. For these reasons, it is also recommended that a Consultant Psychiatrist monitor Ms Salvati at least every two months, for the presence of an emerging psychotic disorder. Again a General Practitioner and/or psychologist would be insufficiently skilled to detect the subtle emergence of a psychosis. It is recommended that [X] continue to spend time with her mother for at least one day per week, preferably supervised by the maternal grandfather, Mr S.
For the above reasons, it is currently recommended that [X] mainly live with her father. In the writer’s opinion, from the information and psychiatric evidence currently available to the writer, there were no substantial clinical reasons for [X]’s time with her father to be supervised.
[X] should not be taken for any further sessions on “sexual self-protective behaviours”, as these have served to reinforce the maternal grandmother’s delusional beliefs. To date, the persistent allegations from the mother and maternal grandmother, and possibly being coached to make disclosures, may have been emotionally damaging for [X]. Fortunately due to her resilience, [X] does not currently present with any overt emotional or behavioural problems. However, if unsupervised contact with her maternal grandmother were to continue, in Ms S’s present psychiatric condition, further allegations that “[X] is being sexually abused” will be made around [X] and probably to [X]. This is likely to be emotionally and psychologically damaging for [X] and her relationships in the medium to long term.
Counsel for the mother submitted that I should place minimal weight on Dr Kasinathan’s report for three reasons. Firstly he submitted that the expert gave his evidence in an argumentative manner. Counsel’s cross-examination was appropriately robust, and Dr Kasinathan’s evidence was equally robust. In a lay witness, especially a party to proceedings, Dr Kasinathan’s manner might fall into the category of argumentative, but he is an expert called upon to offer expert evidence in a difficult case, and who was confronted by a forceful challenge to his evidence. Under the circumstances I did not characterise this witness’s evidence as argumentative, and even if I did it would not detract from his evidence.
Counsel for the mother secondly submitted that there was a lack of any process of reasoning to support his conclusions about the mother i.e. that she may have an underlying psychosis or the future development of a psychotic illness. In particular counsel was critical that his observations of the mother’s “affect” as “anxious” and “odd and fatuous” and her speech and responses as having “latent replies” could not possibly found his conclusions, particularly in the case of the mother who counsel described as “unsophisticated” (transcript p46 line 15). Counsel suggested to the expert in cross-examination that, in effect, what he observed could be explained by the mother being extremely nervous. I do not accept counsel’s criticism of the expert’s evidence in this regard. The expert provided a comprehensive oral explanation of what all of the terms referred to above meant. It was clear from his evidence that his findings about the mother’s mental state was based on the entire mental state examination, and all of the material before him, and not simply on observations about affect and speech responses.
Counsel’s third submission about the weight to be given to the expert’s report is that, in effect, it focussed almost exclusively on the primary considerations set out in s.60CC(2) whilst placing little weight on the addition considerations in s.60CC(3). I accept that there is some substance to this criticism, but not such as to reduce the weight I place on Dr Kasinathan’s report. In cross-examination he did refer to the additional considerations as “secondary considerations”(e.g. transcript page 30 line 47) and at one stage even said that the legislation referred to it as secondary considerations (transcript, p.31, line 37). Notwithstanding this I accept his evidence that his conclusions were based on a consideration of all relevant s.60CC considerations, though he was clearly most concerned about s.60CC(2)(b), and the need to protect [X] from the harm of being exposed to the beliefs of the maternal grandmother. As Dr Kasinathan himself explained in cross-examination, he made observations and comments going to issues such as the relationship between the parents and family, relationships with [X] and parenting capacity. What Dr Kasinathan failed to do was to specifically articulate and group the observations and comments to the relevant statutory criteria which, in my opinion, is hardly a fatal flaw in his evidence.
Willingness and Ability to Facilitate and Encourage Relationship: s.60CC(3)(c)
The focus here is on the mother. There is no criticism of the father in this regard. Regrettably the mother’s actions in this case demonstrate a significant lack of willingness and ability to facilitate and encourage a close and continuing relationship between [X] and her father. In this regard I simply cannot accept the mother’s counsel’s submissions that it was reasonable for the mother to have maintained her belief that [X] had been abused by the father right up till the hearing, and on an ongoing basis. I find it extraordinary that the mother could file her affidavit sworn 24 June 2009 containing the evidence therein after she had read Dr Kasinathan’s report (see paragraph 40 mother’s affidavit sworn 24 June 2009). That affidavit contains allegation followed by allegation of abuse that is either expressly or inferentially perpetrated by the father on [X]. By the time of filing this affidavit the mother had read Dr Szyndler’s report that must have, on any reasonable reading of the same, raised doubts about [X]’s allegations. By the time of this affidavit the mother was plainly aware about the lack of concerns held by DOCS in relation to these allegations (e.g. internal email dated
18 April 2008 – see paragraph 29 of these reasons). Moreover
Dr Kasinathan goes even further and must, in the minds of a reasonable parent reading the report, have provided reassurance about these disclosures. Notwithstanding all of that the mother chose to unquestioningly accept both what [X] was saying and what the maternal grandmother was saying, and maintained her position right up to the hearing. Whilst I cannot discount the role that the maternal grandmother played in the mother’s actions, there is a point at which the mother must herself be accountable for her actions. Regrettably the evidence leaves me with no doubt in my mind that if it were left entirely to the mother, [X] would be spending very little time with her father. This is even reflected in her proposals for the father to have contact. The only way to protect [X] against this is by a court order that leaves little or no doubt about parenting arrangements and which protects her from her mother’s unreasonably held beliefs about abuse, and negative news about the father.. Regrettably this must necessarily involve reducing the mother’s time with [X], and reducing her decision making role.By contrast there was no evidence of the father that leads me to have concerns in this regard. His own proposal to the Court is consistent with his evidence about the importance of [X]’s relationship with her mother. I accept that he is hurt by the false allegations made against him, but I am satisfied he will not let this get in the way.
Likely Effect of Changes in [X]’s Circumstances
The mother’s proposal presents the least change for [X], but retains the greatest opportunity for ongoing harm to her through exposure to her mother’s beliefs. The father’s proposal presents the greatest change for [X], particularly in terms of separation from her mother, but also offers the greatest protection to her and greatest opportunity to maintain a relationship with both parents. The impact of change on [X] is a big concern in this case and weighs heavily on my mind. Counsel for the mother made this point emphatically as the father’s proposal involves a change of primary carer, change of home, possible change of pre-school, change of alternative carers and so forth. I accept all of this. However what concerns me now is the same as what concerned me at the end of the hearing when I made the interim orders I did – the consequences of not changing [X]’s parenting arrangements. After hearing all of the evidence I shared the sense of urgency that
Dr Kasinathan expressed in his recommendations and in his oral evidence particularly at pp.39-40 of the transcript. It was necessary to immediately remove [X] from the location where she was exposed to both her grandmother’s and mother’s beliefs, and the denigration of her father, and to give her the experience of a more normal life in her father’s household. It was also necessary to send home to the mother the message that her continued insistence on maintaining a belief that has no foundation would result in a very drastic reconfiguration of her relationship with [X]. Thus whilst I accept that even the interim order I made presents significant change for [X], to not change these arrangements would expose her to the risk of unacceptable abuse or harm from her grandmother as well as from her mother to the extent I have referred to above. It also presented a risk of further undermining [X]’s relationship with her father.
Issues of Practical Difficulty and Expense: s.60CC(3)(e)
Due to the geographical proximity of the parents and of [X]’s extended family, fortunately in this case there are no issues of practical difficulty and expense associated with spending time and communicating with the other parent.
Parental Capacity to Provide for [X]’s Needs: s.60CC(f)
There is no issue in this case about the ability of either parent to provide for [X]’s physical and intellectual needs. Once I dismiss the mother’s allegations towards the father about physical abuse, as I do without hesitation on the evidence before me, I am satisfied that both parents could perform the physical and intellectual tasks satisfactorily. This is even taking into account that both parents work – the mother part-time, and the father full time. Both seem to have available to them an extended family to assist with care at all relevant times, even taking into account the maternal grandmother’s reduced involvements in [X]’s life which is a consequence of my earlier findings about her.
The real focus in this case is [X]’s emotional or psychological needs. The mother’s counsel criticised the father’s proposal as demonstrating an insensitivity to [X]’s needs for her mother to continue to play a significant parenting role, and as regards the extent to which it would bring about change in her life. I do not accept this criticism of the father. It ignores the realities of this case – that there were significant deficiencies in the mother’s own ability to protect [X], and that this necessitated substantial change in the interests of [X]. I have no concerns about the father’s capacity to provide for all of [X]’s needs.
Regrettably in this case the evidence demonstrates the mother’s lack of capacity to protect [X] from firstly the maternal grandmother’s delusional beliefs and secondly from the mother’s own beliefs and especially very negative views about the father. As I have indicated before, at no stage did the mother seem to articulate anywhere in her evidence anything other than an unquestioning acceptance of what [X] was saying, no matter how fundamentally improbable it was. At no stage did the mother demonstrate any capacity to objectively assess what was happening, no matter how obvious it might be to an objective bystander. It seems as if the mother allowed her own mother to dominate her life to the extent of what the mother believed was happening to [X]. The mother demonstrated no capacity to even think differently to her mother, let alone to protect [X] from beliefs that seemed bizarre and obsessive, and most certainly delusional as described by Dr Kasinathan.
In his report Dr Kasinathan observed at lines 145-6 that in the group interview the mother appeared to follow the lead of the maternal grandmother. This resonated with my own observations of the maternal grandmother and mother in evidence.
The mother’s lack of capacity to meet [X]’s needs is apparent from her actions in taking [X] to a doctor repeatedly, often for little apparent reason, and also her involvement of Ms N, a clinical psychologist.
Ms N’s report dated 14 October 2008 is annexed to the mother’s affidavit filed 18 February 2009. The referral was made by the maternal grandmother, and the purpose of these visits was to “teach [X] self-protective behaviour”. There were nine separate visits between
12 February 2008 and 14 October 2008. At all relevant times [X] was only two years old. The father was not consulted about these visits nor was he involved in any way. The mother and grandmother were present at all visits and were in the same room.
It is interesting to digress for a moment in order to explore the evidence about the involvement of DOCS during the period of [X] attending on Ms N. The first report to DOCS seems to occur on 20 June 2007, and this was followed by reports on 27 June 2007, 3 July 2007, 15 August 2007, 24 November 2007 and so forth. The file itself states that there were 35 reports between 16 June 2006 and June 2008. What is striking about a review of the DOCS file is that the file appears to be constantly closed by DOCS, but then reopened after a fresh report. This no doubt led to the frustration expressed by both the mother and grandmother in their evidence about DOCS inaction. In May 2006 the matter was rejected by JIRT. There was a complaint to the Ombudsman’s office referred to in an email dated 23 May 2008 at p131 of the file. The same email refers to a conversation between a DOCS officer and the grandmother on or about that date in which it is apparent that DOCS had assessed the matter as a level three which therefore meant the file would not be allocated given capacity constraints. The emails states: “She was understandably upset and wanted to know what had to be reported for the matter to be assessed as Level 1”. It is clear that by
18 April 2998 (the email extracted at paragraph 29 above) DOCS had formed the view that the reports were exaggerated. I accept that the mother did not gain access to this email till much later in 2008, if not early 2009 but it certainly provides a very revealing insight into DOCS perception of this matter.
The above provides some background to the involvement of Ms N. Ms N reports that on the ninth visit [X] made a disclosure to her. There is no explanation as to why there were no other visits after the disclosure, given that the purpose of the visits were ostensibly to teach [X] self-protective behaviour. It is as if having made the disclosure it was no longer necessary to teach [X] anything. Another interpretation of these events is that the visits stopped because the mother and grandmother had finally achieved what they wanted – for two year old [X] to make a disclosure to someone other than themselves. As the DOCS file establishes, this provided them with fresh material on which to seek to involved DOCS. The fact that [X] was exposed to nine sessions with a psychologist at her tender age was clearly of little concern to her mother and grandmother. As Dr Kasinathan said in his report attendance at sessions teaching self-protective behaviours only reinforced the grandmother’s delusional beliefs. In his oral evidence (transcript p.38 lines 7-14) he was particularly concerned about the impacts on [X], and as for the grandmother’s beliefs, he referred to it as a “rollercoaster”. These are actually quite insightful words given the context of the DOCS file referred to above. Indeed 2008 must have been quite a “rollercoaster” ride for the mother and grandmother in terms of their belief about [X]’s abuse, with the disclosure to Ms N being a peak, and the rejection by DOCS and JIRT being troughs. Like Dr Kasinathan, however, I place no weight whatsoever on Ms N’s report. Indeed after nine sessions in the constant presence of the mother and grandmother, it is hardly surprising that [X] made the disclosure that she did.
But what does all this say about the mother? Regrettably it demonstrates, together with the other evidence referred to above, a total incapacity to protect [X] from her grandmother’s delusional beliefs, and from the mother’s own quite ill-founded beliefs. Insofar as the mother might be perceived by some to have merely been the puppet for the grandmother, what [X] needed was for her mother to stand up for her and protect her. She failed to do so over an extended period of time and this now casts doubts on her ability to do so in the future. Even a physical separation between the mother and grandmother provides limited reassurance to the Court. The best the Court can achieve is to limit [X]’s time with her mother, and limit [X]’s time with her grandmother, at least pending a review of their psychiatric condition.
Maturity, Sex and Lifestyle: S.60CC(3)(g)
The mother is still quite young, 25 years old, and this might explain some of the immaturity that I found in her behaviour and in her evidence. Her counsel described her in closing submissions as anxious and unsophisticated, and I agree that these are appropriate descriptions. The mother was 21 when [X] was born. The parents had only commenced cohabitation five months earlier. The father is 30 years old and by his manner and bearing in these proceedings demonstrated more maturity than the mother, and an impressive resilience and commitment to his daughter in the face of the allegations. His contact proposals were child focussed. His care proposals were realistic. His approach to the resolution of this conflict was mature and well-considered.
The mother’s immaturity and lack of sophistication may help to explain why she was so dependent on the maternal grandmother, but it does not justify it, especially from [X]’s perspective.
Attitudes and Responsibilities: s.60CC(3)(i)
If one attempts to put aside the serious allegations made by the mother, there still seems to be a very high level of conflict and distrust felt by the parents towards each other and the level of communication between the is virtually non-existent. Moreover both parents seem to have allowed their families to become involved in the conflict at various times. The difficulty is that it is very hard to separate the conflict, distrust and non-communication from the allegations even if one senses these problems would still be there. One can only hope that these findings, and the orders made, might provide a clear and firm differentiating line between the past and the future, so that both parents can get on with their lives with a focus on what is best for [X].
I was impressed with the father’s attitude about parenting when he conceded in cross examination that if [X] became distressed he would involve the mother in resolving this. It was not just a realistic assessment of the limits of his own abilities, but a positive affirmation of the mother’s important role in [X]’s life. He was also persistently confident that, in time, he would be better able to communicate with the mother particularly once she ceases to be under the maternal grandmother’s influence. He had a hope for the future that was quite absent with the mother.
Family Violence: s.60CC(3)(j) and (k)
This did not feature as a significant issue in this case, and to the extent that it was alleged by the mother it was alleged to have occurred so far in the past, and was overshadowed by so many later events, as to be irrelevant in the present case.
Order Least Likely to Lead to Further Proceedings: s.60CC(3)(l)
It needs to be openly acknowledged in this case that there is a high risk of further proceedings. I accept Dr Kasinathan’s recommendations that both the mother and grandmother need to get further psychiatric treatment. Both parents seem to accept this. I intend not to discharge the Independent Children’s Lawyer in order to oversee this process. This of course raises the possibility of further litigation. There is the possibility that the mother may not accept my decision, and lodge an appeal. That is her right, of course, provided she has grounds, but it necessarily involves the parties and [X] in further proceedings. There is the risk of contravention proceedings whatever order I make.
In my opinion, however, the order that is least likely to lead to further proceedings is one that sees [X] living principally with her father, though spending substantial and significant time with her mother. As time goes by, and subject to the mother and grandmother’s progress so far as their psychiatric health is concerned, and subject to an evident change in the mother’s attitude towards the father, it is possible that the parenting orders will again need to change. The fact is that for most of [X]’s life she has been the subject of reporting to DOCS and/or litigation in the Family Law Courts. One would hope for [X]’s sake that this would stop. I am far more confident about the father’s ability in this regard, than the mother’s.
Parental Responsibility: s.61DA
The mother submitted strongly that the presumption of equal shared parental responsibility should apply, in accordance with s.61DA. Both the father and the Independent Children’s Lawyer submitted that the father should have sole parental responsibility.
The mother’s counsel quite properly conceded that both parents distrust each other and were unwilling or unable to communicate, and that this was an argument against equal shared parental responsibility. He stressed, however, than an order for sole parental responsibility would effectively exclude one parent from the other’s involvement in long-term matters relating to [X]. It is ironic, of course, that the evidence indicates that this is precisely what the mother has done to the father since separation. Nonetheless the mother’s counsel submitted that mediation might be the process the parents could use to resolve disputed issues about parental responsibility.
The father and the Independent Children’s Lawyer both emphasised that the parents were distrustful of each other, and were unable to communicate. There is some evidence to indicate that even the use of a communication book was unsuccessful. The Independent Children’s Lawyer in particular stressed the risk of further litigation arising out of an inability to agree, even if mediation were used.
If the statutory presumption in s.61DA is rebutted, it can only be on the basis of s.61DA(4), i.e. that it is not in [X]’s best interests that the presumption apply. I am satisfied that having regard to the matters discussed in this section of my reasons, together with all the other evidence, the presumption is rebutted. The father is to have sole parental responsibility. I am far more confident in his ability to invoke this onerous responsibility wisely. I intend to modify the order so that he is required to consult with the mother, and take into account her views, but that ultimately if they cannot agree he is able to make the final decision himself. I trust that the father will wisely use this responsibility to confer but ultimately make a final decision. In this fashion I believe orders can mitigate the risk that the mother is completely excluded from decision-making, but also realistically provide for decisions to be made when they need to be made.
Orders in Relation to [X]
I conclude that all of the matters to which I have referred above point quite unequivocally to an order that [X] should predominantly live with her father who should also have sole parental responsibility. The important issue I then need to decide is how much time [X] should spend with her mother?
The interim orders I made provide for [X] to live with her father on Friday, Saturday, Sunday and Wednesday nights. Those orders took into account the mother’s usual working days of Tuesday and Wednesday, as well as the fact that the mother was living with her parents. The mother no longer lives with her parents, and she now indicates that she is considering changing her work days to Monday and Wednesday, though I must say that I cannot understand her rationale in doing so. Nonetheless these are matters I take into account.
I understand that [X] is attending pre-school on Mondays Wednesdays and Fridays, but given that the father will now be her principal carer, I will not frame the parenting orders around that. He is at liberty to decide what preschool [X] attends, subject to consultation with the mother, and subject to what is best for [X]. It goes without saying that [X] has experienced significant change in her life recently, and minimising further change might be a good idea. Some change will be inevitable, however.
In structuring [X]’s time with her mother I prefer there to be two block periods each week – one with her father, the other with her mother. This minimises interaction between the parents at changeover. Subject to certain conditions, I intend to give the mother three nights each week as I regard this as a sufficient time for [X] to continue to maintain and build on her relationship with her mother. I believe four nights with the father will achieve the same maintenance and building of a relationship. I appreciate that I am ordering what is, in effect, shared care in a case where the lack of communication and trust has led to an order for sole parental responsibility. I appreciate that this is contrary to the research and recommendations of MacIntosh and Chisholm (see paragraph 16). However the facts of this case are unique and in particular [X] is a young girl who is being taken away from the primary care of her mother because to leave her there exposes her to far greater risk than if she is placed in her father’s care. [X]’s time with her mother in conditional on her not being brought into contact with the maternal grandmother pending further psychiatric assessment and also dependent on a clean bill of psychiatric health for the mother.
Having regard to [X]’s age (three) and date of birth ([omitted]) I would be very surprised indeed if she were to be enrolled to commence school before 2011 by which time she will have only just turned five years old. Once she commences school I recognise that the scheduling of her time with parents needs to be more nuanced, and I will make separate orders in that regard.
Until [X] commences school, and on the basis that her mother intends to work Mondays and Wednesdays, it seems to make sense to commence [X]’s time with her mother from after preschool or 4.00pm on Wednesdays through to 10.00am on Saturdays. This provides the mother with three nights and two days when she is able to care for [X] personally, without reliance on other family members. I will order, however, that [X] is not to go to preschool on both days when she is with her mother, but only one. I note it is currently Friday.
This also minimises [X]’s exposure to her maternal grandmother as least pending a review of her psychiatric condition. I believe that it is in [X]’s best interests that she spend time with her grandmother (as she has been a significant figure in her life) so in the meanwhile I propose two hours commencing from 10.00am Saturday each alternate week at a supervised contact centre. I do not accept that any family member or friend is suited to provide the level of supervision that is required to ensure that the grandmother does not expose [X] to any of her delusional beliefs.
It follows that [X] will live with her father from 10.00am Saturdays (except each alternate weekend, as aforesaid) until after preschool or 4.00pm on Wednesdays. Assuming that [X] will still go to preschool on Mondays and Wednesdays, I expect that this will make the care arrangements for the father more than manageable.
When [X] commences school, weekends will assume a greater importance for both her and her parents. Whilst [X]’s time with each parent will not change, her capacity to spend more time away from each parent will have increased, subject of course to the successful implementation of these orders. I therefore propose that there be two block periods of time each fortnight – six nights with the mother, and eight with the father, each incorporating a weekend. Thus [X] will spend time with her mother from after school on the Wednesday of week one to before school on the Tuesday of week two.
I recognise that these proposed orders provide much more time for [X] with her mother, and on an unsupervised basis, and as such are contrary to the very carefully considered proposals of both the Independent Children’s Lawyer and the father. I think their proposals however underestimate the impact on the mother of moving away from her parents’ home and the influence of her own mother, as well as the impact of these proceedings on the mother. With further psychiatric evaluation of the mother and grandmother I am as confident as one can be about the benefit of these orders for [X].
An issue has arisen about who should conduct the psychiatric assessments. The mother is opposed to Dr Kasinathan because of his report and his evidence. The father and the Independent Children’s Lawyer say that Dr Kasinathan is best placed to conduct the assessments. They submit that if it is left to the grandmother and the mother they will in effect “shop around” for a psychiatrist who will provide a satisfactory report. I agree with the Independent Children’s Lawyer and the father. I think Dr Kasinathan is best places to provide these assessments, but if he is not reasonably available then the Independent Children’s Lawyer should nominate an alternative.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Monique Robb
Date: 20 August 2009
0
2
2