SIMPSON & MITFORD
[2014] FamCA 659
•15 August 2014
FAMILY COURT OF AUSTRALIA
| SIMPSON & MITFORD | [2014] FamCA 659 |
| FAMILY LAW – CHILDREN – parenting – with whom a child lives – best interest of the child – where there is a history of family violence – where the Independent Children’s Lawyer proposes that the father have sole parental responsibility – where the child does not wish to reside with the father – where the presumption of equal shared parental responsibility is rebutted – where the child is at risk of psychological harm – where the mother is granted sole parental responsibility of the child |
| Family Law Act 1975 (Cth) ss60CC, 60B, 61DA, 65DAA Evidence Act 1995 (Cth) MRR v GR (2010) 263 ALR 368 M v M (1988) 166 CLR 69 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 N & S and the Separate Representative (1996) FLC 92-655 |
| APPLICANT: | Mr Simpson |
| RESPONDENT: | Ms Mitford |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
| FILE NUMBER: | DGC | 2947 | of | 2012 |
| DATE DELIVERED: | 15 August 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Stevenson J |
HEARING DATE: WRITTEN SUBMISSIONS: | 18, 19, 20, 21 February 2014 11 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Allen |
| SOLICITOR FOR THE APPLICANT: | Monash Oakleigh Legal Service |
| COUNSEL FOR THE RESPONDENT: | Mrs Conte-Mills |
| SOLICITOR FOR THE RESPONDENT: | Bankstown Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Hafey |
Orders
That all existing orders in relation to the child B, born on … 2002, (“the child”) are discharged.
2.1 That the mother have sole parental responsibility for the child.
2.2That the mother provide to the father written notice of all major decisions which she makes from time to time in relation to the child’s care, welfare and development, including but not limited to issues of education, medical treatment and extracurricular activities, provided that such written notice is furnished by the mother to the father within 7 days of the making of any such decision.
That the child live with the mother.
That the child spend time with the father as follows:
4.1during the September/October 2014 school holidays, from 9:00 am until 5:00 pm on each day between 20 September and 27 September inclusive in Sydney, with changeovers to take place at the mother’s residence unless otherwise agreed in writing
4.2for two periods each of seven days and nights duration during the 2014/2015 Christmas school holidays, on dates to be agreed in writing by the parties or to be from 2 January until 9 January 2015 and 18 January until 25 January 2015 inclusive, with changeovers to take place at the historic site in C Town.
4.3for one half of all school holidays commencing at the conclusion of Term 1 in 2015, as agreed between the parties in writing or being the first half in 2015 and each alternate year thereafter and the second half in 2016 and each alternate year thereafter, with changeovers to take place at the historic site in C Town.
4.4from the conclusion of school on Friday until the commencement of school on Monday in Sydney on two weekends per school term on dates to be nominated in writing by the father to the mother, provided that she receives no less than 21 days’ notice of such dates and with changeovers to take place at the child’s school.
That the child communicate with the father by telephone twice per week at times to be agreed in writing by the parties or between 6:00 pm and 7:00 pm each Tuesday and Thursday, with the father and the mother to initiate the calls on Tuesday and Thursday respectively.
That both parties do all things and execute all documents necessary to cause:
6.1the amendment of the child’s birth certificate so as to include the name “Mr Simpson” as his father; and
6.2 the amendment of the child’s surname from “Allen” to “Simpson”.
That each of the parties do all things and execute all documents necessary to authorise the father to obtain all information which he may request from time to time from the child’s school and treating health professionals.
That each of the parties advise the other as soon as is practicable of any major illness or accident which the child may suffer while in the care of that party.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Simpson & Mitford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: DGC 2947 of 2012
| Mr Simpson |
Applicant
And
| Ms Mitford |
Respondent
REASONS FOR JUDGMENT
the proceedings
Mr Simpson and Ms Mitford are the parents of B, who was born in 2002 and is now twelve years of age. As appears below the child has been exposed to family violence and substantial instability in the care of the mother throughout most, if not all, of his life. He had no contact whatsoever with the father until he was seven years old and last saw him in September 2013. On that occasion, he ran away some five minutes into a court-ordered visit. In the words of the single expert, Mr D: “this is the hardest of hard cases”.
The Independent Children’s Lawyer (“the ICL”) proposed that the child live with the father and that he have sole parental responsibility. On the ICL’s proposal, the child would spend no time with the mother for eight weeks after this change in primary residence. Thereafter, he would spend gradually increasing periods with the mother during school holidays. Initially, this time would consist of four day periods each of six hours and would increase to half of all school holidays and one weekend per term. Essentially, the father supported the proposals of the ICL.
The mother sought orders that the parties have equal shared parental responsibility and that the child continue to live with her. He would spend time with the father in Victoria for half of all school holidays; the Father’s Day weekend; one weekend per term and as otherwise agreed by the parents. The parties or their nominees would meet at C Town to effect changeovers. The mother proposed further that, in the event that the father lives in the Greater Sydney area, the child would spend equal time with each parent. If the father lives in New South Wales, but at a location more than one hour’s distance from the child’s school, the mother proposed that he spend time with the father each alternate weekend.
Background
The father was born in 1969 and is presently forty five years old. He suffers from rheumatoid arthritis and Graves’ disease, which conditions prevent him from engaging in paid employment. His income consists of rental from an investment property and payments pursuant to an insurance policy. He lives with his parents in a four bedroom house at Suburb E in Victoria.
The mother was born in 1975 and is currently thirty eight years of age. She holds a number of varied qualifications. In 2008 she suffered injuries to her hip when she fell from an escalator. She underwent surgery on 24 January 2008 and 22 September 2012 and now suffers from osteoarthritis in her hip. At the time of swearing of her affidavit on 10 February 2014, the mother was in receipt of a disability pension. She was attempting to supplement her income by home manufacturing and selling these items at market stalls.
The mother has two children, being B and another son named F who was born in 1995 and is aged nineteen years. He lives with the mother and the child at Suburb G in Sydney. Between 2007 and 2013 F lived with the mother’s stepfather, Mr H, at Suburb I in Sydney.
The mother and father met on 31 July 2001, when she was on holiday in Victoria. She claimed that she and the father engaged in a “one night stand”, which resulted in her becoming pregnant with the child, and that they never entered into a relationship. The father maintained that they had “a casual relationship”, which ended when the mother returned to New South Wales on 15 August 2001.
There was an issue between the parties as to when the father became aware that B is his child. The mother claimed, and the father denied, that she informed him of her pregnancy after she returned to Sydney. She alleged, and the father denied, that she told him that he had a son in 2002 but he showed no interest in the child.
The father maintained that the mother telephoned him in 2005 and told him that “he was the father of her youngest child”. According to the father, the mother said that she would send photos of the child to him but failed to do so. The father made no attempt to follow up on this information or to obtain photos of the child.
The father alleged that the mother’s sister, Ms J, contacted him in July 2009, saying that the child was his child and that he “looked exactly like [him]”. The father then arranged with the mother to meet her and the child at a motel in K Town, which is a town in the City L area. They met on 24 July 2009 and, on 25 July 2009, they agreed that the mother and the child would relocate to Victoria.
In August 2009 the mother and the child moved to Suburb E and stayed in the home of the father and his parents for approximately two weeks. They then moved into rented accommodation with Mr M. There was uncertainty as to the nature of the mother’s relationship with Mr M. They have variously described themselves as “engaged” or “partners” but, in these proceedings, they both maintained that they are “friends”.
Prior to the move to Victoria the mother had been involved with violent relationships with Mr Allen and Mr O. She also acknowledged violence in her relationship with Mr P.
The mother commenced a relationship with Mr O in 1999 and separated from him approximately three months before she travelled to Victoria in July 2001. She reconciled with Mr O after her return to Sydney in August 2001 and the relationship continued until 2006. The mother described this relationship as “very abusive” and characterised by Mr O’s “aggression and physical and mental abuse”. She admitted that Mr O “belted” the child and said that “he was a very violent, abusive man to me, the child and [F]”. Mr O was imprisoned for twelve months in May 2007, after having been convicted of possession of an unregistered firearm, possession of cannabis and amphetamines and common assault.
It seems that the mother identified Mr O to the child as his father and that the child used his surname, as is evident from various documents annexed to the mother’s affidavit. Copies of documents annexed to the father’s affidavit showed that the child was registered as “B O” until 28 December 2006, when his birth certificate was amended to record him as “B”. (annexure DJS2 to the father’s affidavit).
Proceedings between the mother and Mr O in the Local Court at City L resulted in orders that the child spend three days with her and four days with him each week. This arrangement came to an end when Mr O was imprisoned in May 2007.
In 2007 the mother entered into a relationship with Mr Allen. It would appear that she led the child to believe that Mr Allen was his father. As noted, his registered surname was changed to “Allen” on 28 December 2006.
The mother also used the surname “Simpson” for the child on at least one occasion. On 29 October 2011 he completed the Sacrament of Reconciliation at R School in Suburb E. Annexed to the mother’s affidavit was a certificate to that effect in the name “B Simpson”. By 3 June 2012, however, when he completed the Sacrament of the Holy Eucharist, the child again was known by the surname “Allen”.
In September 2012 the mother left Suburb E with the child and moved back to Sydney. There was dispute as to the circumstances of this relocation and what notice, if any, the mother gave to the father.
According to the father, the mother sent him a text message at 6:55pm on 25 June 2012, requesting that he attend a meeting at the child’s school at 7:00pm that day. She claimed that she could not participate in the meeting due to a headache. The father met with the child’s teacher and was informed of concerns in relation to his poor attendance, academic performance and personal hygiene.
The father maintained that he informed the mother of these concerns on 27 June 2012 and she responded with a series of “abusive” text messages. He threatened to obtain an intervention order if she continued with this behaviour. On 28 June 2012 the mother obtained an interim intervention order against the father, which named the child as “the second affected family member”.
The final hearing of the mother’s application for an intervention order against the father was listed for 2 August 2012. On that day the mother took the child to court, apparently with the intention that he give evidence to the effect that his fear of the father was such that he urinated whenever he saw him. The father maintained that, acting on legal advice, he consented to a final intervention order and that he now strongly regrets this decision.
On 30 August 2012 the father attended the Family Law Assistance Program at N University and sought advice as to how he could prevent the mother from taking the child out of Australia and by what means he could see the child, given the existence of the final intervention order. The father contended that the mother had threatened to take the child to Country Q. According to the father, the mother was served on 21 September 2012 with his Initiating Application and affidavit filed in the (then) Federal Magistrates Court. The mother contended that she failed to attend court on 15 October 2012 because she had not been served with the father’s documents but conceded that she was aware of the adjourned date of 3 December 2012.
In September 2012 the mother and the child left Suburb E and moved to Sydney. She returned to Victoria for hip surgery on 27 September 2012 and again left for Sydney on 3 or 4 October 2012. She was accompanied by the child and Mr M. The mother made no contact with the father while she and the child were in Victoria on this occasion.
When asked why she did not remain in Suburb E while awaiting her surgery the mother said: “…because the child was crying on the bloody floor in a state. It was the state that [the child] and I were in…”. It was contended on behalf of the father and by the ICL that the mother in fact “fled” when she was served with the father’s Application. There may well be substance to that contention, having regard to the evidence of the single expert to the effect that the mother has a propensity to “flee difficult situations”.
The mother gave no notice to the father that she intended to withdraw the child from R School when she departed for Sydney. She left behind a debt of $2,515 on account of outstanding school fees. It seems to me to be more probable than not that the mother removed the child from Victoria and took him to Sydney without notice to the father.
On 4 March 2013 interim orders were made by the (then) Federal Magistrates Court. These orders provided that the child spend time and communicate with the father as agreed between the parties and transferred the proceedings to the Parramatta Registry. Between 27 June 2012 and 23 December 2013 the child had telephone contact with the father on three occasions, all of which were in May/June 2013. On one occasion the child was the instigator of this contact. He saw the father for some five minutes on 22 September 2013, before he ran away from a visit prescribed by orders made by consent on 12 June 2013. The only other occasion when the child saw the father prior to the commencement of the trial was during the interviews conducted by the single expert on 16 October 2013.
On 16 April 2013 the mother attempted suicide by ingesting antidepressant and painkilling medications in the presence of the child. Regrettably, the child rang for an ambulance and witnessed police officers and paramedics transport the mother to T Hospital.
It seems that the mother made this suicide attempt after an altercation with Mr M. In her oral evidence the mother said that she remembered little of this incident. Hospital notes (exhibit 11) recorded that a social worker interviewed the child at the time of the mother’s admission.
I see no reason to doubt the accuracy of the social worker’s records of this interview with the child. The hospital notes read in part as follows:
[B] stated [Ms Mitford’s] partner is [Mr M]… the child stated he told her today they are splitting up and that is why she o/d on tablets. [The child] stated [Ms Mitford] told him she was going to kill herself and telephoned [Mr M] just after taking the tablets to tell him. [The child] stated [Ms Mitford] had o/d before a few years ago again because she had a fight with [Mr M]. [The child] appears quite mature for his age when talking to him. [The child] stated it is very upsetting for him that she tries to kill herself when she still has him to look after.
The social worker also noted:
Provided counselling for [the child] who appeared clearly upset for having witnessed his mother o/d for the second time.
In cross-examination the mother was asked about previous suicide attempts. She said:
I have attempted suicide once last April and once in Melbourne and others, April 2013, September 2012, 2005 I don’t recall, 2003 I guess so.
The mother disclosed that she was involved in a group which practised “witchcraft” in 2010 and 2011. She described the activities of this group as “pagan Celtic practice to bring in the seasons”. The mother conceded that the “high priest” of this group was a registered sex offender. In what could only have been a painful and embarrassing experience, the mother described in cross-examination sexual assaults which this man perpetrated upon her during “rituals”. To the mother’s credit, she ceased her involvement with this group and, in 2012, she gave to police a detailed statement in relation to the activities of the “high priest” and other members.
Unfortunately Mr M also became involved with this group and participated in their “rituals”, three of which occurred in the backyard of the mother’s home. Given that the mother was blindfolded on all three occasions, she was in no position to say whether the child witnessed any of these unsavoury practices. Certainly, he was present in the home on each of these three occasions and could well have observed the activities of the mother, the “high priest”, Mr M and other members of the group.
On 29 July 2013 an incident occurred between the mother and Mr M, which resulted in the attendance of police and an interim apprehended violence order for her protection. The relevant COPS entry (exhibit 12) stated inter alia:
she felt pain when struck by the poi. No further pain.
The primary victim and the poi are currently ex partners. They were dating for approximately six months.
The accused and [Ms Mitford] have previously been in an intimate relationship. This relationship has been on and off for approximately five years…
Also present at the time of the incident was [Ms Mitford’s] eighteen year old son.
About 12.45am on Monday, 29 July 2013 the accused entered the residence of [Ms Mitford] uninvited via the front door…Upon entering the residence the accused made his way to the kitchen where [Ms Mitford] and [ ] and [ ] were seated. The accused has stood in the doorway of the kitchen and said “oh yeah I thought so”. The accused pointed at [Ms Mitford] and “you, you fucking bitch”. The accused moved in the direction of [Ms Mitford] while saying to [ ] “you know she is banging me and you at the same time?” The accused then slapped [Ms Mitford] with his open left hand to the right side of her head. [Ms Mitford] attempted to stand up from her chair and was grabbed by the accused on her right arm just above the elbow. [Ms Mitford] began to push away from the accused and said “get the fuck out of my house now”. [Ms Mitford] repeated this several times to the accused before pushing the accused away. [ ] stood up from his seated position in the kitchen. The accused pointed towards [ ] and said “you, you fucking cunt”. The accused then lunged toward [ ] and taken hold of him by the throat pushing [ ] against the nearby wall. [ ] pushed the accused’s arm away at which point the accused has moved back into the doorway of the kitchen. [Ms Mitford] has continued to yell at the accused f “leave her house”. The accused stated to [ ] “if you ever fucking come near me I will fucking shoot you”. [ ] replied “I’m not the one that has come near you”. The accused said “did you hear that?” [ ] replied “I’m not the one that’s come near you”. At this time [Ms Mitford] has taken two kitchen knives and chased the accused through the lounge room and out the front door of the residence while yelling at the accused to get out of the house. When the accused was passing through the front door [Ms Mitford] said “don’t you ever come here again, get out”. The accused replied “I’m going”. [Ms Mitford] has then slammed closed the front door of the residence…
In her oral evidence the mother gave the following description of this incident:
I had an interim avo against him. I did not turn up on the day it was to be finalised. He came into my house at a time when we were not talking because of his friends. He went off his nut and said horrible things, he was yelling a lot and of course he was abusive, to me and [F]. [B] was sleeping in his room. [F] called police and they took out an avo.
In his oral evidence Mr M described this incident as follows:
I had not heard from her over that weekend and I was concerned. I went to see if she was ok on Sunday and her friend [Mr S] was there, [the child] was in his room and [F] was with them in the kitchen. I walked in and had a verbal altercation with her. I think I said “you fucking bitch”. I don’t remember saying “you fucking cunt”. I did not take anybody by the throat. She told me to leave in a raised voice. I did not say “if you ever come near me, I will fucking shoot you”. I don’t remember saying “you know she is banging me and you at the same time”, I did not say that. She ran after me with two kitchen knives. We resolved those issues and moved on from it.
After her suicide attempt on 16 April 2013 staff at T Hospital referred the mother to the Aboriginal Health Care Centre. Currently she receives assistance from a family support worker and a person with experience in mental health issues. Her uncontradicted evidence was that her only current medication is a reduced dosage of Kalma, which she takes only when she experiences high levels of anxiety.
In the course of these proceedings the father raised concerns that the child may have been sexually abused by his half-brother, F. There has never been an investigation into these allegations by the Department of Community Services (“DOCS”) or the New South Wales Police force. Little or no attention was focussed on these allegations during the evidence or in final written submissions. In fact, there was no evidence as to what inappropriate behaviour the child allegedly suffered at the hands of F.
The mother told Mr D that “part of the maliciousness of [Mr O] involved him making a false allegation that her son [F] sexually abused [the child]” and that the Magellan Report demonstrated that “the vast majority of notifications were dismissed out of hand”. The mother said also to the single expert that she believed that Mr O made “the majority of notifications to DOCS and that there was no basis to these allegations”. Mr D noted that “notwithstanding the many notifications, little action has been taken, including to do with the allegations of sexual abuse”.
To his credit, the father accepted that the child may not have been sexually abused by his half-brother. He deposed:
I defer to the expert report at paragraph 29. I note that [Mr D] does not have any immediate concern that the child may have been sexually abused. I accept the possibility that [Mr O] may have made false reports to DOCS as a retributive measure against the respondent, or that the respondent has made these allegations as an attention seeking measure. My concerns that [the child] has been sexually abused have therefore abated somewhat, although they are not extinguished, especially given my recent conversation with [Ms U]. In part for this reason, I support the idea that [the child] sees a psychologist or counsellor on an ongoing basis, so that if there is any truth to these allegations, he has a means to discuss this and receive support.
On one day during the trial I was asked to adjourn early to enable the mother, the father and the paternal grandmother to attend an event at the child’s school together. The mother made this suggestion to the father and the paternal grandmother. The next day I was informed that they had attended the school event without incident and behaved amicably toward each other. At the end of the evidence I was informed that arrangements had been made for the child to go to a movie with the father and paternal grandmother on the Friday night before they returned to Victoria.
Approach To These Proceedings
In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.
The court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
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.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(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.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (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”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M v M (1988) 166 CLR 69. Their Honours said (at page 76):
…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…
and at page 76:
…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.
In M and M (at pp 76-77) the High Court identified the relevant standard of proof in these terms:
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 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood 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.’
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act1995 (Cth), which provides:
140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
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 assess 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.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N & S & the Separate Representative (1996) FLC 92-655:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool which a court might utilise in assessing whether there exists an “unacceptable risk” of sexual abuse of a child.
The Evidence and Witnesses
The applicant father relied on the following affidavits:
1.Mr Simpson (the father) sworn on 23 December 2013
2.Ms V (the paternal grandmother) sworn on 20 December 2013.
Both the father and the paternal grandmother gave oral evidence.
The respondent mother relied on the following affidavits:
1.Ms Mitford (the mother) sworn on 10 February 2014
2.Mr M (the mother’s friend/partner) sworn on 10 February 2014.
Both the mother and Mr M gave oral evidence. Initially the mother relied on an affidavit of her son F sworn on 10 February 2014. Fortunately, this affidavit was withdrawn and he was spared the experience of cross-examination.
I had the considerable benefit of a report dated 18 November 2013 and oral evidence from the single expert, Mr D. I also had the assistance of a Magellan Report dated 1 August 2013 which set out numerous notifications, ranging between 28 April 2003 and 21 June 2013, in relation to the mother’s care of her two children.
At the conclusion of the evidence, the legal representatives elected to make submissions in writing. I received written submissions from the ICL and counsel for the mother and father on 11 March 2014, 3 April 2014 and 24 April 2014 respectively.
The Best Interests of the child: section 60CC Considerations
The expert evidence of Mr D left no room for doubt that the child would derive great benefit from a meaningful relationship with each of his parents. Mr D identified substantial vulnerabilities in the mother and expressed grave concerns as to the nature of the child’s relationship with her. I refer below in these reasons to Mr D’s evidence in relation to the mother’s personality structure and vulnerabilities. In his oral evidence Mr D said:
The father offers a greater level of certainty, security and connection, the question is whether [the child] should live with him. I see the father as a significant adjunct. If the mother is not physically or emotionally able to care for him, the father is all he has left to hang on to.
In respect of the mother, Mr D reported:
22. …Her resilience is extraordinarily low, her ego structure fractured and her ability to reflect upon herself and her behaviour, let alone tolerate any criticism of her behaviour, minimal. The history suggests she shows a history of avoidance, that she flees difficult situations and that her personality style is such that she places responsibility for her actions upon the behaviour of others. Her decision to flee from Melbourne to Sydney and to “make herself pretty scarce” is a reflection thereof. She is clearly a woman who has suffered significant maltreatment in her own life, her own mother having had significant problems and having made a number of suicide attempts prior to her final death by suicide when [Ms Mitford] was 19 years of age, and it is not surprising that [Ms Mitford] describes herself as a person who has suffered from post-traumatic stress disorder, anxiety, episodic depression and a panic disorder. The history as she conveyed it suggests to me that these have been lifelong problems as the consequence of long term neglect, severely compromised family relations, poor parental care and a lack of family stability and security. It is not surprising that she has struggled with interpersonal relationships and that her history of poor choices entails men with whom she has partnered.
Mr D opined further in relation to the mother:
55. [Ms Mitford] is a highly vulnerable personality, with significant areas of difficulty, who is profoundly vulnerable to the impact of stress. Her personality style is to externalise and to place blame and responsibility for her predicament on others, and she showed a marked tendency to justify her actions based upon her perception of the treatment of her by others. ….She found it difficult to separate her needs to those of [the child’s] and at the very least, I would describe their relationship as severely enmeshed, with both having extreme dependency needs…
As to the relationship between the child and the mother Mr D reported:
38. I was left in no doubt that the boundary between [the child] and his mother was diffuse in the extreme, with the child being aware not only of the affidavit material but the concerns harboured by his father, contents of the DOCS documents and his father’s concerns. Even though the child described his mother as warm, kind and loving, psychological assessment revealed themes that he perceives his mother as powerless, who has little control of her own life, and consequently is unsure as to whether she has control over his life. [The child] loves his mother, but feels responsible for her; he doesn’t feel safe with her because she does not feel safe within herself.
39. [B] described his mother as his most special person, the person with whom he can talk and a person who can calm him the most. I suspect however that it is also true that so emotionally intertwined and psychologically fused are they, that his mother’s distress and agitation also contributes directly to his distress and agitation.
Despite the child’s stated opposition to spending time with the father, he was observed by Mr D to “warm” toward him during the observation session. I refer below in these reasons to the views which the child expressed to Mr D in relation to the father. Mr D reported:
42. …Upon seeing his father, [the child] immediately withdrew. He put his head down and was reluctant to engage with his father, who sought to enter into easy conversation with him. To his credit, [Mr Simpson] persevered and there was some conversation from [the child].
43. It seemed clear and apparent to me that part of this display by [the child] was for my benefit, at which point I excused myself, told them that I had some things that needed to be dealt with and turned my attention to my computer.
44. As my attention was directed elsewhere, [the child’s] behaviour in relation to his father warmed significantly. Their conversation improved substantially, the child lifted his head and conversed easily and normally with his father. [Mr Simpson] showed [the child] a number of photos that he had of the time when the child was living with them and this immediately engaged the child. They reminisced about the events, the people and they enjoyed a laugh. This provided to [Mr Simpson] the opportunity to really engage with [the child] and to elaborate on what was happening in the family with other people, to which [the child] appeared genuinely interested. They maintained discussion around the photos for some time and then settled around a board game, specifically Battleships and Cruisers, and played very constructively for nearly half an hour.
45. [B] appeared to enjoy the time with his father, he was relaxed, he was comfortable, he maintained an easy dialogue, they conversed easily about the game and in many ways the interaction was quite uneventful. However, at the end of the session, when I invited [the child] to say goodbye to his father, he again became self-conscious, my participation was conspicuous, he said his goodbyes but resisted any embrace or any other gesture of affection.
Mr D reported as follows on his observations of the interaction between the mother, Mr M and the child:
46. [B] in the company of his mother and [Mr M] was relaxed and comfortable. He immediately settled in and with his mother and [Mr M] maintained a very relaxed level of conversation. He played happily, with them both and independently.
47. [B] seemed very genuinely relaxed in the company of his mother and she with him. Again I chose to appear distracted during these observations and with the removal of scrutiny, they all seemed to relax significantly and relate easily and spontaneously. [Ms Mitford] obviously relaxed in the company of her son and showed less of the pressure of speech and intensity and the agitation evident of her in my individual sessions. [The child] clearly showed preferential interest and involvement with his mother, but engaged easily and comfortably with [Mr M].
On the mother’s own evidence, in the past she has failed to protect the child from physical or psychological harm due to exposure to abuse, neglect or family violence. She described his exposure to violence directed at herself and him by violent ex-partners. The incident between herself and Mr M, which occurred while the child was present in the home, also was of concern in the context of the child’s exposure to violence.
I am inclined to accept the mother’s evidence that Mr O made spurious complaints to DOCS about her parenting of F and the child. Significantly, none of these complaints prompted any investigation by child protection authorities.
I consider that the mother’s exposure of the child to her suicide attempts to be a form of psychological abuse. Of course, it is beyond doubt that in so doing the mother was the victim of her own psychological vulnerabilities. When taken to the social worker’s notes of her interview with the child after the April 2013 self-harming event, Mr D commented: “[B] appreciates that she is unable to prioritise his needs over hers. It invites him to look after her”.
Nothing in the evidence persuaded me that there is any need to protect the child from physical or psychological harm due to exposure to abuse, neglect or family violence in the care of the father. The mother maintained that she observed the father use marihuana and drink alcohol on a daily basis when she lived in Victoria but there was no evidence to corroborate these allegations. The paternal grandmother said that she has never seen the father smoke marihuana but conceded that “he drinks a few cans of Jim Beam every now and then”.
There is no doubt that the child expressed very strong views to the effect that he wishes to remain with the mother and have no communication nor spend time with the father. Essentially, he put these views into practice when he ran away from the father only minutes into the court-ordered visit on 22 September 2013.
Mr D reported as follows in relation to the child’s stated views:
36. [B] presented as an anxious, tentative boy, who cautiously discussed his relationship with his father. His presentation was initially rigid and unwavering. He tod (sic) that he had no wish to see his father, that the last time there was a scheduled visit he ran away and he told me that he was frightened of him. However, the child found it enormously difficult to substantiate his concerns other than repeat his discomfort. He justified his wish to not see his father in generalities, explaining that his father knows violent people, that his father “keeps going off at him” and because his paternal grandmother alleged that he took $20. This is notwithstanding that in real terms, [the child] has had no contact with his father for almost eighteen months.
37. From [the child’s] perspective, it is the fear of further disruption in his life that was prominent. He complained that previously the decision was made to remove him from school and to move to [Suburb E]. He found it difficult to settle and to make friends. He now considers himself settled at his current school, he is happy, he has friends and he feels that he is making gains. He told me that he is worried that his father will remove him from school and from his mother. He complained that previously, and in particular during his time at [Suburb E] at the two schools, he was teased, had trouble making friends and was not supported. In keeping with the personality style of his mother, [the child] also spoke about being victimised by teachers, poorly treated, picked on and blamed.
B described to Mr D, in graphic terms, his physiological reaction to the prospect of removal from the mother and permanent placement with the father. Mr D reported as follows:
41. [B] was anxious about these proceedings, and the possibility that the court will make a decision to remove him from his mother. He certainly impressed as an anxious person, particularly vulnerable to stress and likely to react in a regressed manner when confronted with stress. He told me that he clearly perceives these proceedings as a battle between his parents for ownership of him, with his greatest fear being that his father will win and keep him. [The child] became extremely anxious at the prospect of relocation, a move from school and further disruption. He told me that his mother was also extremely stressed and worried, and he told me that she too has anxiety. He described suffering from active symptoms of panic, including an inability to breath, poor concentration, hyperventilation, shaking and an inability to sleep.
In his oral evidence Mr D said:
Absolutely the child fears being removed from his mother…[B] is likely to view the world from a prospective of protecting his mother, there is a role reversal and his wishes need to be considered in that context.
Mr D said further:
When [the child] ran away from the father in September 2013, I don’t think that it is remotely possible that his feelings have not been influenced by the mother, the boundary is almost non-existent.
Mr D expressed a firm opinion as to the weight to be given to the child’s expressed views. In his oral evidence he said: “his wishes must be secondary to what is best for him”. Mr D made no clear recommendation, however, for a change in primary residence. As noted, he described these proceedings as “the hardest of hard cases”.
I have referred already to the expert opinions of Mr D as to the enmeshed nature of the relationship between the child and the mother. He summarised his assessment of the nature of the child’s relationship with each of his parents as follows in his report:
III. The Relationship between the child and Each of his Parents and Any Other Relevant Persons
[B] has a highly anxious and ambivalent relationship with his mother. He does not trust that she can be a safe, stable, secure figure in his life. Her emotional state impacts upon him significantly. Even though at one level he loves his mother, at another he can’t trust her. He looks after her emotional state, and their relationship is enmeshed. [The child’s] refusal to see his father is in support of his relationship with his mother. He fears for his mother’s emotional welfare and consequently his own. I have no doubt that [the child] loves his mother, however, he has concern about his mother’s capacity to care for herself and to keep herself safe, and therefore to keep him safe. At a certain level there is a role reversal, with [the child’s] concerns being for his mother and her welfare. His refusal to see his father is an attempt to protect her from the threat of loss by virtue of him having a relationship with his father.
In relation to [Mr Simpson], [the child’s] criticism and complaints are superficial. He is unable to provide any detail. He is anxious about his relationship with his father for reasons that he is unable to articulate. My observation of the child with his father, notwithstanding the more recent circumstances, was extremely positive. When they were able to reminisce and look at photos and talk about matters past, there was a real sense of connection and a sense of calm. There was warmth between them. I suspect that [the child] has a much better relationship with his father and has more positive memories of his father and his experience with his father than he is prepared to acknowledge. His defensive position is to reject his father outright in defiant support of his mother. My observations of [the child] with his father suggests that his experience has been significantly more positive than the child acknowledges.
Unquestionably, the father has gone on to great lengths to play an active and constructive role in the child’s life since they met in 2009. I accept that his motivation in bringing these proceedings was a genuine concern for the child’s welfare rather than any desire to inflict revenge or punishment upon the mother.
On the other hand, the father did nothing whatsoever to establish a relationship with the child after the mother informed him that he was the child’s father in 2005. In 2009 he took steps to meet the child only after that suggestion was put to him by the mother’s sister. For her part the mother repeatedly has made unilateral decisions about significant matters in the child’s life, for example, changes of school and relocation from Melbourne to Sydney. The father has made no effort to give cards and gifts to the child at Christmas and on his birthday.
The father has paid child support but sought on several occasions to reduce assessed amounts by reference to payments for other purposes. For example, the father sought to deduct from periodic payments the cost of accommodation for the mother and the child when they travelled to Melbourne for the Family Report interviews. The court had ordered that the father meet that expense.
There is no doubt that a removal from the mother and placement with the father would have a profoundly distressing impact upon the child. I have referred above to some of Mr D’s evidence as to the likely effects upon the child of a change in residence.
Mr D summarised his predictions as to the likely effect on the child of a change of residence as follows in his report:
v. The Likely Effect of Any Changes in the child’s Circumstances, Including the Likely Effect on the child of a Transfer of Primary Care from his Mother to his Father.
[B] desperately fears a change in his living circumstances. He clings to his mother and his relationship with her, possibly, tenuously so. The possibly more anxious, insecure nature of his attachment relationship with her accentuates his feelings. He can’t separate from his mother because he is so anxious, and yet is unable to feel comforted by her. There is a degree of role reversal and he feels the need to protect her.
[B] desperately fears yet another disruption in his life. He desperately wants to stay at school and to be with his mother. He is likely to react poorly to such a disruption. He has little in the way of ego-strength to tolerate disruption. It is extremely likely that he will be symptomatic. I think it is also extremely likely that [Ms Mitford] will become symptomatic and further attempts at self-harm are unfortunately, likely. Depending of [Ms Mitford’s] level of coping, she will have a profound effect on the child and his level of coping. My expectation is that with time, and on condition that he can be offered real security and stability, [the child] would adapt to a change in the living arrangements, however there will be risks, and especially to [Ms Mitford] and her mental health; there are likely to be serious risks to [Ms Mitford’s] mental health anyway. A move into the care of his father is deeply contrary to the child’s wishes. Nonetheless, in isolation, a move might be in his best interests.”
In his oral evidence Mr D said:
I think residence to the father would be a significant crisis for the mother, a significant psychological reaction, a reasonable chance of her self-harming. I think the child already feels responsible and he will feel more responsible. It might make the father’s primary carer role more difficult.
Mr D also said:
The risk is that he will be so overwhelmed that he will decompensate but my experience is that relief from the burden may allow him to pursue more age appropriate activities and direct his psychological energy. [The child] is a young man with really serious problems and I don’t think a move will suddenly unburden him. A move will not suddenly and cathartically change all that.
The practical difficulty and expense inherent in the child living with one parent and spending time with the other is a real consideration in these proceedings. It will be necessary for either the child or the non-residence parent to travel interstate to achieve that purpose. Each of the parties has limited available funds, although the father’s financial position would appear to be somewhat stronger than that of the mother.
The mother made constructive suggestions with regard to arrangements for the child to spend time with the father, if he remains in her care. To adopt the words of Mr D, however, “she needs to walk the walk as well as talk the talk” and carry these suggestions into effect. Regrettably, history gives rise to doubt as to whether the mother is willing and/or capable of ensuring that the child sees the father on a regular basis. It may be the case, however, that her fear of a permanent separation from him will motivate the mother to comply with orders for the child to spend time and communicate with the father.
I have referred above to aspects of the evidence which established clearly that the mother has a significantly compromised capacity to provide for the child’s needs. Perhaps some ray of hope for improvement in the future, however, is her recent engagement with community support for herself and mental health care for the child. She receives assistance from workers at an aboriginal health centre and a family support service. Her unchallenged evidence was that she recently told her family support worker that she wishes to complete the Triple P Parenting Program and that a place was available to her late in February 2014.
The mother gave uncontradicted evidence that she sought psychological assistance for the child in 2012. She deposed that Dr W referred him to a psychologist, Ms X, on 19 July 2012. The mother also gave uncontradicted evidence that, upon their return to Sydney, Dr Y referred the child to a psychologist named Ms Z. A limited number of appointments with Ms Z were funded by a care plan and thereafter the child was referred to Fairfield Child and Adolescent Mental Health Service. He attended his first appointment with that service on 3 December 2013 (exhibit 6).
It seems that the mother has derived support from Mr M for a number of years, whatever may be the nature of their relationship. It is of no little concern that police officers have intervened between them on more than one occasion. Mr D reported, however: “I was more reassured by the sense of calm that descended upon her whilst she was with the child in the company of [Mr M]”. I have no reason to speculate that Mr M will withdraw his support of the mother and the child in the medium-term future.
Mr M said in his oral evidence that he has known the mother since 2006 and described their relationship as “a very strong friendship”. He said that he has “been a father figure to the child” and that he “is very close to him”. Mr D opined that “it does however appear that in her “friendship” with [Mr M] there is some stability”.
Effectively, the father is untested as a residence parent. I am inclined to accept his evidence that he played a more significant role in the child’s care than that which the mother was prepared to acknowledge while they lived at Suburb E. The reality is, however, that he has never undertaken full-time care of the child.
Mr D identified graphically the enormity of the challenge which the father would face, in the event that the child were to be removed from the mother and placed in his care. Certainly it is to the father’s credit that he proposed to engage the assistance of a counsellor for the child in that event.
Nonetheless, I have serious concerns that the father underestimated the difficulties which he would face if the child were placed in his full time care. His prediction as to the child’s likely reaction was that “I anticipate that he will miss his mum but I think he will come good, when he settles into a routine”. I am especially concerned as to the father’s capacity to deal with the child’s reaction, if the mother were to attempt self-harm after a change in primary residence.
The father would have the assistance of the paternal grandmother if the child is placed in his full time care. In fact, the child and the father would live in her household. Ms V impressed as a pragmatic person and she is an experienced parent and grandparent. Her oral evidence, however, left me with some doubt that she appreciated the extent of the difficulties inherent in a change of residence. She said:
He probably would not be one hundred per cent happy at the start but we would make sure that he could talk to, see his mum.
The expert evidence of Mr D established that the child would suffer a much more severe and painful emotional reaction to a change in residence than that predicted by the father and the paternal grandmother. I have grave concerns that the child may run away if he is separated from the mother and placed in the full time care of the father. He could not be supervised twenty four hours per day and may feel so desperate that he takes matters into his own hands. He would be isolated in Victoria, without support to his perception, and might reasonably be expected to attempt to make his way to Sydney. I am greatly concerned that he would be at risk of physical and/or psychological harm in such circumstances.
In recent times the mother appears to have connected with her Aboriginal heritage. The father was asked about the child’s ongoing involvement with aboriginal culture, in the event that that there is a change in residence. He said: “aboriginality only came out of the blue in 2011, 2012. I have made enquiries of a school counsellor for aborigines. If there is any proof, I want him to explore his culture”. The father gave no indication of what “proof” he would require to establish that the child has aboriginal heritage.
As outlined above it is beyond doubt that the child has been exposed to significant violence in the mother’s household for most, if not all, of his life. I accept the expert opinion of Mr D as to the impact of this violence upon the child. He reported:
vii The Effects on the child of any Family Violence to which he may have been exposed.
[B’s] presentation is more like a book with a number of complex chapters. Family violence is just one page in that book. It is not my assessment that family violence in and of itself was more or less significant than any of the other factors. I was not left with the impression, from the child at least, that exposure to family violence was the origin of his anxiety or indeed the main source of that anxiety, albeit that the seriousness of his experiences should not be understated.
The evidence failed to reassure me that the child will be protected from future litigation. If he remains in the care of the mother, the father is likely to be vigilant as to her level of care and to commence further proceedings if matters of concern come to his attention. In my view, the father is also likely to take contravention proceedings if the mother fails to ensure that the child spends time with him in accordance with court orders.
The Presumption of Equal Shared Parental Responsibility
It seems to me that, effectively, the mother and father have no capacity to co-parent the child. They are deeply suspicious of each other and have demonstrated no ability to consult in relation to significant issues in the child’s life. In fairness to the father, however, it must be acknowledged that the mother has engaged repeatedly in unilateral actions and efforts to exclude him from the child’s life.
Accordingly, I am satisfied that the presumption is rebutted by evidence that equal shared parental responsibility would not be in the child’s best interests. I can see no viable alternative to an order that the primary residence parent has sole parental responsibility. I consider, however, that the primary residence parent should keep the other party informed of all major decisions in relation to the child from time to time.
As there will be no order for equal shared parental responsibility, I am not required to consider whether it is in the child’s best interests and reasonably practicable that he equal or substantial and significant time with each of his parents. I am liberty to make that determination by reference to the child’s best interests.
Conclusion
B is now aged 12 years 4 months and he has never lived separately from the mother. There was an abundance of expert evidence to the effect that he would suffer emotional trauma if he were to be removed from her and placed in the care of the father, contrary to his strongly held and expressed wishes. The single expert could offer no real reassurance that the child would cope with such a drastic change in his living arrangements.
As noted above, there is a serious prospect that the mother would make further attempts at self-harm in the event that the child were to be removed from her care. As Mr D opined, the child is likely to “feel responsible” for the mother’s actions. Such a heavy burden could only inflict serious psychological damage upon the child.
Additionally, I have set out above my serious concerns that the child would be placed at risk of physical and/or psychological harm in the event that he attempted to leave Victoria and make his way back to Sydney. I am acutely conscious that all of the persons from whom he derives support are located in Sydney. I refer here to the mother, albeit that he has an unhealthily enmeshed relationship with her, Mr M and Mr H.
As noted, the mother has engaged with support services and sought mental health assistance for the child since her return to Sydney. Mr M has demonstrated a willingness to provide care and support for the mother and the child. It can but be hoped that the mother will continue to engage with these services and that there are no further incidents of conflict between the mother and Mr M.
Ultimately, it seems to me that the risks inherent in a change of primary residence militate against that course when there can be no certainty that the child would accept and adjust to such new living arrangements. Certainly, life for the child in the care of the mother is far from optimal but the alternative is fraught with difficulty.
Accordingly, I will make orders which will result in the child remaining in the primary care of the mother. She will have sole parental responsibility but she will be required to inform the father in a timely manner of all major decisions. There will be orders which provide for the child to spend time and communicate with the father on a regular basis.
The mother should entertain no doubt that any failure on her part to ensure that the child spends time and communicates with the father on a regular basis could well result in a reconsideration of arrangements for his primary care. If she fails to ensure that the child achieves a productive and beneficial relationship with the father, there may be no alternative but for the court to attempt a change in primary residence.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 15 August 2014
Associate:
Date: 15 August 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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