Smeeden and Wulandri

[2011] FamCA 619

FAMILY COURT OF AUSTRALIA

SMEEDEN & WULANDRI [2011] FamCA 619

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT: Mr Smeeden

RESPONDENT: Ms Wulandri

INDEPENDENT CHILDREN’S LAWYER: Tiyce & Partners Lawyers

FILE NUMBER: SYC 7830 of 2009

DATE DELIVERED: 8 August 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 27, 28, 29, 30 June 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Mockler
Stewart Cuddy & Mockler

COUNSEL FOR THE RESPONDENT: Mrs Conte-Mills

SOLICITOR FOR THE RESPONDENT: Goldrick Farrell Mullan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Tiyce

Orders

1. That all existing parenting orders in relation to the child K born on … February 2002 (“K”) are discharged.

2. 2.1     That the father have sole parental responsibility for making major long-term decisions as to K’s care, welfare and development.

   2.2That the father inform the mother by email of all such decisions as soon as practicable.

3. That each of the parties has sole responsibility for making decisions as to K’s day-to-day care, welfare and development when he is in the care of that party pursuant to these orders.

4. That K live with the father at all times other than the periods specified in order 5, during which he will live or spend time with the mother.

5. That K live or spend time with the mother as follows:

   5.1commencing on 3 September 2011, from 10:00am until 2:00pm each Saturday

   5.2commencing on 1 October 2011, from 9:00am until 5:00pm each Saturday

   5.3commencing on 29 October 2011, from 9:00am until 5:00pm on the Saturday and Sunday of each alternate weekend until 26 and 27 November 2011

   5.4from 9:00am on Saturday until 5:00pm on Sunday on the weekends of 3 and 4 December 2011 and 17 and 18 December 2011

   5.5commencing on 29 December 2011, from 5:00pm on Friday until 9:00am on Monday each alternate weekend until the beginning of Term 1 in 2012

   5.6from the commencement of Term 1 in 2012 from the conclusion of school on Thursday until the commencement of school on Monday in each alternate week, with such time to commence in the first week of each school term

   5.7order 5.6 is suspended during school holidays

   5.8for one half of all school holidays commencing at the end of Term 1 in 2012, being the second half unless otherwise agreed by the parties

6. That the mother is restrained from approaching K at his school or any other place or communicating with him in any way until 3 September 2011

7. That the father forthwith arrange for K to attend upon a psychologist and provide the name and address of that therapist to the Independent Child’s Lawyer (“ICL”) within 7 days of the date of these orders.

8. That the mother cause K to be delivered to the father within 24 hours of the date of these orders.

9. That the appointment of the ICL continue until 5 November 2011.

10. 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.

11. That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment under the pseudonym Smeeden & Wulandri is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7830 of 2009

Mr Smeeden

Applicant

And

Ms Wulandri

Respondent

REASONS FOR JUDGMENT

the proceedings

1. Ms Wulandri and Mr Smeeden are the parents of a son, K, who was born in February 2002 and is now 9 years old.  The Independent Child’s Lawyer (“the ICL”) sought orders that K live with the father and spend graduated time with the mother, leading to alternate weekends and half school holidays.  On this proposal, the father would have sole parental responsibility for K.  The father joined the ICL in seeking these orders.

2. In an Outline of Case dated 24 June 2011, the mother indicated that she sought orders that K live with her and spend only supervised time with the father.  She sought an order that she have sole parental responsibility.  At the end of the trial the mother proposed that the parties have equal shared parental responsibility; that K live with her and spend graduated time with the father for a period of approximately 10 months.  A week-about arrangement would then commence, with changeovers occurring on Mondays.

Background

1. The mother was born in 1960 in Asian Country 1 and is now 50 years of age.  She married in Asian Country 1 and this relationship subsisted for about 17 years.  There was one child of the marriage, a son named V who was born in 1988 and is now 23 years old.  V has a bachelor’s degree and works in the computer industry.  He lives in Sydney in accommodation rented jointly with the mother.

2. Between 1998 and 2000 the mother lived with Mr G.  The mother and father met on 31 December 2000 and immediately began an intimate relationship.  She and V moved into the father’s unit at Sydney Suburb 1 in March 2001.

3. The father was born in 1970 in Australia and is now 40 years of age.  K is his only child.

4. There was a dispute as to the nature of the relationship between the parties.  The mother alleged that she and V shared a bedroom and that the father pursued relationships with other women at will.  The father claimed that he and the mother lived together in a de facto relationship.  In any event, K was born to them in February 2002 and it was common ground that they separated under one roof in June 2002. 

5. After separation, the parties continued to live in the father’s unit and shared the care of K.  The mother moved out of the premises in August 2006, after she commenced a relationship with Mr M.  She then moved into Mr M’s Department of Housing accommodation.  The mother’s son V stayed with the father until October 2006, when he obtained his own accommodation. 

6. In May 2004 the mother applied unsuccessfully for Department of Housing priority accommodation.  It seems that she first tried to obtain public housing in about 2000 and finally was approved in February 2009. The file of the Department of Housing suggested that she was liberal with the truth in some material which she submitted in support of her application.  I refer below to various details of these misrepresentations.

7. In 2007 the father began a relationship with his present partner Ms H.  She was born in Asian Country 2 in 1972 and is now 38 years old.  She has a 10 year old, D, from a previous marriage:  D sees his father in Asian Country 2 at least once per year and often more frequently. Ms H was granted a partner visa on 31 January 2011, which permits her to remain in Australia indefinitely.

8. The father and Ms H began to live together in his unit at Sydney Suburb 1 in November 2007.  Her son D lives with them and attends School 1. 

9. In November 2008 the mother married Mr M.  He claimed that the marriage broke down in December 2008.  In February 2009 she moved out of his unit and went to live at Sydney Suburb 2.

10. Between August 2006 and March 2009 K spent time with each of his parents, by arrangement between them.  The last time when he stayed overnight with the father was 30 March 2009.  The mother unilaterally terminated all of his time with the father after day visits on 27 and 28 June 2009.

11. The mother alleged that the father sexually abused K by wrestling naked with him and exposing him to inappropriate activity between himself, Ms H and other women.  She alleged further that he failed to provide adequate food for K and allowed him to drink alcohol.  She also alleged that the father left K alone in his unit.

The Evidence and Witnesses

1. The applicant father relied on the following affidavits:

   1.        Mr Smeeden (the father) sworn on 23 June 2011

   2.        Ms H (the father’s partner) sworn on 27 June 2011

   Both the father and Ms H gave oral evidence.  They both presented as straightforward, credible witnesses.

2. The respondent mother relied on the following affidavits:

   1.Ms Wulandri (the mother) sworn on 23 June 2011

   2.Mr M (the mother’s estranged husband) sworn on 21 June 2011

   3.V (the mother’s son) sworn on 22 June 2011

   All of these witnesses gave oral evidence. The mother presented as a witness who was careless with the truth and prepared to direct vitriol at a number of people.  Her son V created a very favourable impression, presenting as an intelligent and honest young man.

3. Mr M was in the curious position of having sworn an affidavit in support of the cases of each of the parties.  He swore an affidavit in support of the father’s case on 29 December 2010.  He was treated as a witness in the mother’s case and cross-examined by the legal representatives of both the father and the ICL.  The status of his relationship with the mother was uncertain.  He stayed at her accommodation in Sydney Suburb 2 “off and on” after December 2008 and they travelled to New Zealand together in mid 2010.  He said “I really deeply love the woman”, a fact of which the mother is almost certainly aware.

4. I had the benefit of a report dated 6 May 2011 from a single expert, Dr R.  I also had the assistance of a report from Family Consultant Ms S.  Both Dr R and Ms S gave helpful oral evidence.

Approach to These Proceedings

1. In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.

2. Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.  Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.

3. The court must have regard to the objects of Part VII, as set out 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’s right to enjoy his or her culture.

4. 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.

5. 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”. 

6. 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.”…

7. In Cowley v Mendoza [2010] Fam CA 597 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR.  I extend my gratitude to my learned colleague for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.

8. When a court makes or contemplates making a parenting order, it must:

   ·apply the presumption of equal shared parental responsibility

   ·determine whether there is abuse of a child or family violence, which means that the presumption does not apply

   ·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility

   ·if the presumption applies:

   ¨   determine whether it is in the child’s best interests for there to be an order for equal time with each parent

   ¨   make findings as to the matters set out in section 65DAA(5) which are:

   Reasonable practicality: 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.

   ¨   as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable

   ¨   if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order

   ·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests

9. A leading decision on the approach to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166CLR 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 75:

   “…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.”

10. In M and M the High Court identified the relevant standard of proof as (at pp76-77):

    “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.’”

1. The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (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.

   (3)      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.”

2. 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.

3. 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:

   “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.”

4. The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S:

   “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 in the determination of the issue of “unacceptable risk”.

The Allegations of Sexual Abuse

1. In cross-examination the mother effectively said that the allegations of sexual abuse were not her principal concern about K spending time with the father.  She gave this evidence:

   ·“The molestation issue is not the real issue here.  The thing is that [K] has been devastated by the fact that his father does not want to admit him and put his name on the birth certificate”   and

   ·“The molestation issue arose when [K] saw a child psychologist.  She is trying to make [K] understand that molestation is wrong”    and

   ·“I can’t prove that molestation occurred and this is not the reason I want to stop [K] seeing his father.”

2. In final submissions counsel for the mother said:  “the mother conceded that she must accept that the sexual abuse allegations cannot be substantiated”.  This concession was necessary in light of the mother’s ultimate proposal for a graduated regime of a regime of time with the father, culminating in a week-about arrangement.  The mother’s abandonment of the sexual abuse allegations is also consistent with the outcome of an investigation by the police and Department of Human Services (‘DHS’) and the opinion of Dr R.  The evidence satisfied me that K was not sexually abused by the father.

3. In an assessment record dated 12 March 2010 a DHS officer wrote: 

   “At 11am on 1 October 2009 the OIC attended [Sydney Suburb 3] JIRT with the vic ([…]), K, and his mother [Ms Wulandri].  The vic was interviewed by JIRT officer DSC Mr A and the interview was monitored by [C] and [L].

   The second disclosure of concern was that the POI ([the father] dob […]/[…]/1970) had touched the vic’s ‘willy’.  This issue was addressed in the interview and the vic said that he and the POI were in bed wrestling and the POI was naked and touched his penis.  Further questioning revealed that the vic appeared to be unaware of the meaning of naked, stating that both he and his father were wearing ‘shirt, undies and pants’.  When questioned about how the POI touched his ‘willy’ the vic stated that it was through his clothing and only for a few seconds, the vic then stating that it was an accident.”

4. Dr R  reported:

   “I asked [K] about his statements of wrestling naked with his father.  [The father] added ‘your mum told you to say that.  We used to watch TV in bed together.  You didn’t understand what naked meant’.  [K] said defensively ‘I did’ then [the father] expanded and said ‘you said you had jeans and T-shirt on’.  The child looked a bit confused.  Then [K] said ‘it was a long time ago’.  Then [K] said ‘yes if you get me you will punish me’.”

5. DHS officers recorded their conclusions as follows:

   “[K] dob […]/02/2002 has been reviewed jointly by DOCS, NSW Police and NSW Health on 12/03/10.  This referral has been rejected by JIRT, as it does not meet the following JIRT criteria for sexual abuse – no disclosure of sexual assault – same disclosure already been investigated by [Sydney Suburb 3] JIRT”.

6. As to the allegations of sexual abuse, Dr R opined:

   “There was a shared responsibility between [the father] and [the mother] for the care of [K].  After [the father] moved away there was a regular contact arrangement.  However in April 2009 contact broke down as there were sexual abuse allegations made against [the father].  The initial allegation arose after [Mr M] made a comment that [K] touched him on the penis.  The mother then openly admitted that she at bedtime would question [K] and over a number of days or weeks disclosures were elicited from the child.  I believe that this approach to extracting information from a child is highly flawed and highly likely to have produced the misleading answers that either [the mother] was looking for or that she feared and was trying to eliminate.  The word ‘hennessy’ was used and the mother interpreted this idiosyncrasy as having some meaning to do with a female’s genitals.  There was also a disclosure of wrestling naked and the child did not have a clear concept of what the word naked meant.”

7. There was some indication that the mother “coached” K prior to the interview by DHS officers.  In his first affidavit Mr M swore that he heard the mother “instructing [K] and telling him how to respond to certain questions he might be asked” on several occasions prior to this interview.  In his second affidavit he attempted to retract this evidence, stating that he did not intend to assert that the mother “coached” K.  In his oral evidence he said that he “heard her giving him instructions about something behind a closed door”.  I am not persuaded by the mother’s evidence to the effect that she simply explained to K that there would be cameras operating during the interview, given her overall lack of credit.

8. For these reasons I find, on the balance of probabilities, that the father did not sexually abuse K.  I am comfortably satisfied that there is no unacceptable risk that he will sexually abuse the child in future.

Additional Allegations of Abuse and Neglect Against the Father

1. On 10 June 2009 DHS officers interviewed the father in relation to the mother’s allegations that he abused and neglected K.  The DHS file noted that she made these complaints:

   “[K] has not returned to his father since 30 March 2009.  The mother confirmed the allegations in the ROH report – supervision, premature exposure to sexual behaviour and premature exposure to alcohol.  The father dismissed her attempts to discuss these.  This happened over a two-three year period.  On 26/3/09 the mother obtained a unit 2 bedroom through Housing.  She ceased the care arrangement from then and will apply for sole custody.  The parents will go to mediation through FLC.  The mother wants [K] to maintain a relationship with the father.  She hadn’t told anyone before now as she did not know what to do.”

2. Following the interview of the father, the DHS officer noted: 

   “The father denied all allegations of ROH report.  He added the mother had been difficult recently but up until that time things had been amicable.  The father believes the allegations are from the mother and are due to financial motivation.  He has not tried to have contact with his son as he does not wish to inflame the situation given the mother can be aggressive.”

3. The DHS officer concluded:

   “Allegations were made that child K (7) has been exposed to lack of supervision, premature exposure to alcohol and premature exposure to sexual activity by his father [Mr Smeeden].  This has happened over a 2-3 year period.  Allegations cannot be confirmed.  The father denies all allegations in ROH report.  The father believes the mother is motivated by financial (Centrelink) reasons.”

4. There was no evidence to corroborate the mother’s allegations that the father abused or neglected K.  These matters were investigated by child protection officers and found to be unsubstantiated.  It may well be no coincidence that the mother made these allegations at the time when she finally secured public housing.  She then gained independence and no longer needed the father to play any role in K’s care.  Dr R said:  “It is quite plausible that she no longer needed the father and her primary focus is on her needs”.   Given the mother’s impaired credit and the absence of corroboration of these complaints, I am not satisfied that there is substance to these allegations.  In any event, these complaints were inconsistent with the mother’s ultimate proposal for shared care.

The Presumption of Equal Shared Parental Responsibility

1. The ICL submitted that equal shared parental responsibility was not feasible, because the parties are unable to communicate and may well come into conflict.  The ICL drew attention to the  “abusive” emails sent by the mother to the father, around the time when she unilaterally suspended K’s time with him.

2. The mother’s emails and text messages to the father from about June 2009 certainly were rude and offensive, despite her protestation that she “did not abuse [the father] and [Ms H]”.  Unconvincingly, she alleged that some of the text messages annexed to the father’s affidavit had “been modified”.  Presumably she intended to suggest that he altered these messages to bolster his case.  I am far from satisfied that he did so.  Even on the assumption that messages were altered by the father, some of the admitted contents were of an abusive and offensive nature.  It is difficult to describe otherwise messages such as: “you n [the father] bludging [D] dad money” and “you just a parasite for [D] you have been used him”.

3. In emails to the father in 2009 the mother consistently referred to Miss H as “the dog poo from [Asian Country 2]”.  Extraordinarily, she justified her use of this expression by saying that she did not know Ms H’s real name and “neighbours said I could call her dog poo”.  It is highly unlikely that any person told the mother to refer to Ms H in this highly offensive manner.  In any event, it is her responsibility to act in a socially acceptable manner.

4. The mother referred to the father in similarly offensive terms in emails in mid 2009.  For example, she wrote “this shit creature like [the father]” and “[the father] will never change as bludger, sucker…what a fucking shit man he is”.  She sent a stream of emails and text messages in similar terms, for which there can be no justification or excuse.

5. The tone of these emails and text messages, together with the mother’s unfounded allegations against the father of abuse and neglect, do not bode at all well for equal shared parental responsibility.  I am not satisfied that either party has engaged in abuse of K or in family violence, although the mother’s capacity to meet his emotional needs is questionable for reasons which appear below.

6. It seems to me that there was ample evidence that equal shared parental responsibility would not be in K’s best interests.  The mother obviously has a hostile attitude to the father and has been prepared to create conflict with him in the past.  I have no basis for confidence that she would support a co-parenting arrangement in the future.

7. It follows that there should be an order for sole parental responsibility, which I will combine with an obligation to keep the other party informed of all major decisions in relation to K.  As a matter of practicality, the party with whom K spends most time should have sole parental responsibility.

The Primary Considerations

1. Dr R stated that he has “concerns about the mother’s personality and coping style”.  He said that she has strong dependency needs and appears currently to look to V to fill this gap in her emotional functioning.

2. In his report Dr R characterised these dependent traits in the mother as follows:

   “I do have concerns about her personality style.  [The mother] it would appear did also have a sense of entitlement in her expectation that the psychologist would change her statements in order to favour her story and her case.  The mother had expressed bizarre ideas such as a fear of the child becoming gay.  I believe that this reflects her lack of objectivity or ability to process an act in a reasonable and logical way.  There is also a sense of desperation.  She appears somewhat desperate about possibly losing [K] and needing to clutch on to statements that [K] has made.  It’s difficult to make a clear assessment of her personality considering cultural issues and possible language issues.  However, her dependency and desperation in decisions such as forming the relationship with [Mr G], [the father] and then [Mr M] appear to be more out of a need for security and a sense of desperation rather than wanting a balanced relationship.  When the relationship broke down with [the father] [the mother] moved in immediately with [Mr M] and married him.  I have concerns that if she has no adult relationship that she could easily become overly dependent on the children emotionally.

   In essence she appears to have significant dependency needs in combination with a sense of entitlement.”

3. I refer below to the evidence that the mother attempted to have a psychologist amend her report in a way which the mother apparently believed would assist her case.  The reference to “the child becoming gay” reflected the mother’s statement to Dr R that she feared that K would become homosexual if he were to see the father.  This statement was not included in several matters in Dr R’s report with which the mother took issue.  She denied that she had any concern that K would “grow up to become gay” but alleged that she feared that “in the event there was further abuse that it may prematurely impact his views on sexual orientation”. 

4. With these potential deficiencies in his relationship with the mother, K needs significant input into his life from the father.  Dr R assessed that K and the father have a close, loving relationship.  He was of the view that a strong bond exists between them and that K recognises him as his father.  In these circumstances, K would not only benefit from but has a strong need for a meaningful relationship with the father.

5. K would also benefit from an ongoing meaningful relationship with the mother.  He needs an arrangement which can achieve that end while allowing him the opportunity for a meaningful relationship with the father as well.

Additional Considerations

1. K has expressed to the mother, the Family Consultant, Dr R and Ms Z a wish not to spend time with the father.  Dr R and the Family Consultant both expressed serious reservations as to the genuineness of K’s stated views.

2. In her affidavit the mother said:

   “Since 28 June 2009 [K] has repeatedly said to me words to the effect “I don’t want to see dad” and “please don’t make me spend time with dad” and “I’m scared of [Ms H]” and “[D] is mean to me.”

3. In her oral evidence the mother asserted that K stopped seeing the father of his own volition.  She said “it was [K] who refused to see him”.

4. Some of the mother’s statements in cross-examination suggested that she would again unilaterally terminate time with the father if K were to make similar comments in future.  She said “I would cooperate with orders that [K] spend time with [the father] so long as [K] is happy”.  She said also “I am not stopping him from seeing [K].  It is because [K] does not want to see his dad”.

5. The Family Consultant spoke to K alone and asked him about “three wishes”.  She reported:

   “[K’s] three wishes were: for a new ‘dad’; to stay with ‘my mum’; to ‘never separate from my mum and my brother’.  He said that he wants to stay with his mother and he was ‘scared that my dad gets me’.  [K] said that if his father ‘gets him’ he ‘might do the things he did to me before'.  He is worried that he might have to live with his father”.

6. Dr R reported:

   “Although he made negative statements about his father such as his father not giving him enough food and making him sleep on the top bunk and wrestling with him naked, I don’t believe that these statements reflect his wishes.  I believe that these are statements that he has learned most probably from repetitive questioning and he appeared to have learned to repeat these when being interviewed.  The joint interview with the father showed a very close relationship and genuine interest and bond between the father and the child.  I believe the child also has a close bond and relationship with his mother and also his brother [V].  He also appeared comfortable with [Ms H] although he hadn’t seen her for two years.  Despite the lack of contact since August 2009 there is still an extremely strong bond between [K] and [the father].”

7. Ms Z noted on 17 June 2010 that she asked K to communicate his concerns to her.  He referred to “getting the interview wrong” and “having to go and live with his father”.  The “interview” was an upcoming assessment by the Family Consultant.  Dr R considered that the first of these statements indicated that K is well aware of the mother’s belief system about the father.

8. In his interview with the Family Consultant K repeated complaints about his father, including naked wrestling and being given wine.  He “could identify nothing nice” about Ms H and “indicated that that there is nothing he likes about [D]”.

9. When the Family Consultant observed K and the father together, he was initially reserved and wary.  She facilitated a conversation, then K began to make eye contact with the father and smiled at him.

10. When the Family Consultant introduced Ms H and D, K was initially “clearly uncomfortable”.  He and D quickly began to talk together and the father joined in a game.  The Family Consultant observed that K became “quite relaxed in answering any question which the father put to him”.  She noted that he “did not appear to be in a hurry to end the session”.

1. The Family Consultant observed that K interacted with the mother affectionately and that he was relaxed and playful with her.  In her opinion, the mother “gave the impression of being interested in what [K] was doing and her responses seemed appropriate to the situation”.

2. The Family Consultant noted that K is afraid of losing his mother as a result of these proceedings.  She proffered two potential explanations as to the source of this fear.  One possibility is that he is genuinely fearful of being sent to live with a parent whom he has experienced as abusive, neglectful or indifferent.  The second possibility is that his anxiety about losing his mother has affected his perception of the father.  I consider the second possibility far more likely, as I am not satisfied that the father has abused or neglected K.

3. The Family Consultant speculated that there could be some pre-existing anxiety in K’s attachment to his mother.  This anxiety would stem from his being exposed to the mother’s responses to people who antagonise her, including the father. 

4. The Family Consultant here referred to the mother’s alleged pattern of aggressive and vengeful behaviour toward people with whom she has had unsuccessful relationships or otherwise come into conflict.  The emails and text messages which she sent to the father and Ms H were a striking example of this propensity.  I have no reason to suppose that the mother shielded K from her adverse opinion of them.

5. K lived with the mother during the breakdown of her relationship with Mr M.  I have no reason to suppose that she was any more kindly disposed to him when their relationship failed than was the case with the father or Mr G.  I doubt that she insulated K from her views of Mr M at this time.

6. In his first affidavit Mr M deposed:  “On 3 August 2010 [the mother] sent an email to my two children and copied it to [V] in which she made a number of false allegations about me.  In part the email said: ‘call these numbers which are all claiming about your dirty Dad having babies with them’.  There were six numbers supplied.”  Mr M did not retract this assertion in the affidavit which he swore in support of the mother’s case.  He did attempt to resile from this evidence in an unfiled affidavit. 

7. The mother admitted in cross-examination that she sent an email to Mr G on 9 December 2009, in which she called him “bastard”, “land leech” and “dog” in the language of Asian Country 1.  She said that she did not regard this email as abusive, as she was merely responding to his betrayal of her.  Again, I doubt that K was insulated from her hostility toward Mr G.

8. It seems to me that these communications illustrate the sense of entitlement which Dr R indentified in the mother.  Apparently she considers that she has the right to direct vitriol of this nature at any person who displeases her.  In my opinion, this behaviour is unacceptable and not that of an appropriate role model for K.

9. The mother admitted in cross-examination that she applied for Apprehended Violence Orders against Mr G, the father, Ms H and Mr M.  She has involved the police in disputes with the father.  For example, on 17 October 2004 she told police that K had been kidnapped by her flat mate when in fact, the father had taken him out for the day.  The police notes annexed to the father’s affidavit indicated that the mother was warned on this occasion for creating a public mischief.  These actions are not those of an appropriate role model for a child.

10. Dr R referred to a report in relation to K prepared by a clinical psychologist, Ms B.  She interviewed K and the mother on 29 August 2009 and prepared a report for use in court proceedings.  Approximately 10 days later the mother returned the report to Ms B and insisted that she make certain corrections.  She also required that Ms B reassess K to “get him” to reveal information about abuse by the father.

11. Ms B noted in her file that the mother provided 10 pages of material which she had prepared and insisted that she insert this information in her report.  Ms B refused to incorporate this material into her report or subject K to the pressure of a reassessment.

12. Ms B’s file contained correspondence between herself and the Healthcare Complaints Commission in relation to a complaint lodged by the mother.  This correspondence contained the pages of additional material which the mother required her to include in the report.  Essentially, these pages set out a litany of complaints about the father and Ms H.

13. The mother maintained that she merely “pinpointed inaccuracies”, such as dates in the report.  She denied that she sent to Ms B pages of additional material which she required to be incorporated into the report.  She alleged that Ms B “was lying” if she suggested otherwise.  The contents of Ms B’s file demonstrated that this evidence was patently false.

14. It should be noted that the conduct committee of the Psychologists Registration Board reprimanded Ms B in January 2011 and imposed conditions on her right to practice.  This hearing was held in camera and no details were released as to the reasons for this decision.

15. K has developed most unfortunate beliefs that the father wanted to have him aborted and that he refused to have his name entered on the birth certificate.  The mother alleged that Ms H told K that his father wanted to have him aborted.  Ms H denied that she did so and said that D relayed to her a conversation with K, in which he said that his mother told him “when he was in his mum’s tummy his father wanted to kill him”.

16. In an email to the father dated 1 July 2009 the mother wrote:

    “[K] said that your fake girlfriend – the dog poo from [Asian Country 2], has been abused [K] feeling and brainwashed [K] by talking about your intention to abort baby [K] when I was pregnant of [K].  The dog poo from [Asian Country 2] tried to bribe [K] by not giving your Nintendo DS toy.  She deliberately forced [K] to accept the fact that you never asked me to abort [K] when I was pregnant.

    [K] was asking to play with the toy just once, but your fake girlfriend warned [K] three times not to touch the toy --- unless [K] admitted her “new story” about the abortion.”

17. It seems likely to me K raised the subject of the father’s wish to abort him and Ms H attempted to reassure him that there was no truth to this very damaging assertion.  In my opinion, the mother was the most likely provider of this information to K.

18. Mr M confirmed this version of events in an email dated 14 December 2010 to the father.  He wrote:

    “[The mother] denied [the father] access to [K] since April 2009.  Since then [the mother] has turned [K] against his father by twisting and exaggerating events to such a point where [K] is psychologically scared of [the father] and his partner [Ms H].  Such as the time around April 2009 I heard [the mother] tell [K]: - “did you know your father wanted to kill you?” [The mother] then proceeded to tell [K] that [the father] wanted [the mother] to have an abortion when [the mother] was pregnant with [K].”

19. The mother denied that she told K that the father refused to put his name on his birth certificate.  She told an unconvincing story about him becoming aware of this information when he saw documentation about the birth certificate at the age of 7 or 8 years.  I consider it likely that the mother told K that there was a time when the father’s name did not appear on his birth certificate as part of her attempt to undermine their relationship.

20. I have referred above to the mother’s dishonest representations to the Department of Housing.  There were indications in the file that she was prepared to say whatever she believed was necessary to achieve her aim of securing public housing.

21. In an application dated 13 February 2009 the mother wrote:

    “See my sons father and he has to live close to his school ([School 1]).”

    Only 6weeks later the mother unilaterally severed all contact between K and his father.  Despite this representation, she unilaterally removed him from School 1 and enrolled him at School 2 in October 2009.

22. The mother told an unconvincing tale of K’s being bullied by D and his friends at School 1.  This story does not fit with the contents of a document prepared by the school principal, which the mother used to support her application to the Department of Housing.  On 5 February 2009 the principal wrote:  “[K] has been attending [School 1] since kindergarten.  He has made excellent progress during this time and has a wide circle of friends.  [K] would definitely benefit from continuing his education at [School 1] without any significant interruptions”.

23. In the same application the mother represented that she was paying rental of $200.00 per week to a person “who used to be my friend but not any more.”  She stated that she had been given notice to leave this accommodation.  At this time she was married to Mr M and living with him in his Department of Housing unit.  He provided a letter dated 3 February 2009 which the mother used to support her application.  He wrote “we were or nor are in a relationship”.  This information was patently false.

24. The mother’s sense of entitlement is thus illustrated by her emails and text messages; her multiple AVO applications and reports to police and false representations to the Department of Housing to achieve her own ends.  For these reasons I have concerns that she is an inappropriate role model for K.

25. The mother has sought assistance from psychologists and medical practitioners in relation to her mental state.  On 13 January 2010 Dr Y provided a certificate in which he indicated that he had treated the mother since 2003 for intermittent anxiety and depression.  He stated:

    “In summary, [the mother] suffers from depression with occasional psychotic features, but has not been diagnosed as having schizophrenia.”

26. On the same date Dr W provided a certificate which stated that the mother was not depressed but suffering from moderately severe anxiety.  She advised her to resume taking Zoloft to alleviate her anxiety.  Dr W wrote that the mother does not suffer from schizo-affective disorder.

27. On 2 June 2009 Dr X, a Registrar in psychiatry, reported to a general practitioner on her reviews of the mother on 27 April 2009 and 1 June 2009.  Dr X assessed that her mental state was stable but recommended that she should take a medication “Sertraline” indefinitely, given her history of anxiety and depressive episodes.

28. On 24 December 2009 a clinical psychologist, Ms E, provided a report for the mother in support of an application to the Victims Compensation Tribunal.  This report recited a litany of complaints by the mother against the father of violence directed at her and abuse perpetrated upon her and K.  Ms E recorded that the mother, Dr X, Dr Y and Ms J, psychologist, “all reported that her psychosis symptoms are well—managed with medication”.  Ms E recommended that the mother undertake cognitive behaviour and inter-personal therapy.

29. Dr R identified no psychiatric disorder in the mother but, as noted, he had “concerns about her personality and copy style”.  There is some doubt about her capacity to provide an environment of emotional stability for K.  It is to her credit, however, that she has sought professional assistance for her anxiety and depression.  There was no evidence as to whether she has taken up Ms E’s suggestion for therapy.

30. The specifics of K’s current living arrangements were somewhat unclear at the end of the trial.  The mother has been allocated community housing at Sydney Suburb 4 but she spends some time in a unit at Sydney Suburb 5 which she rents jointly with her son V.  She said that she and K live at the Sydney Suburb 4 property on weekends and she sometimes sleeps there during the week.  K lives at Sydney Suburb 5 on weekdays, so it follows that V plays a significant role in his care.  These arrangements concerned Dr R, who considered that K may feel abandoned by the mother.

31. I digress to note that the mother did not inform the management of her Community Housing accommodation at Sydney Suburb 4 that she is a co-lessee of the Sydney Suburb 5 property.  She said “it is not my property anyway so why should I let them know?”  I would imagine that the operators of the community housing would be most interested to know that the mother rents another property and spends time there regularly.  In my view, this situation is another example of the mother’s sense of entitlement.

32. A substantial issue in the proceedings was the likely effect on K of the change in residence proposed by the father and the ICL.  The father acknowledged to the Family Consultant that K would find this move difficult, as he would miss his mother.  The Family Consultant considered that such a move may prove to be “traumatic” for K and recommended that the change be preceded by professional assistance.  She suggested a practitioner other than Ms Z, because her notes indicated that she accepts that the father sexually abused K.

33. Dr R opined that K would adjust to a change of residence “within a matter of months”.  He opined that he would experience “a mixture of confusion and loss about not seeing his mother for a time and relief and joy at seeing his father again”.  He considered that the greatest difficulty would be the mother’s ability to cope with the loss of K.  In Dr R’s view, K would “settle quite quickly if he saw that she was coping”.  He recommended that the mother engage in individual therapy to help her adjust to a change in residence.

34. Dr R predicted dire psychological consequences for K if he loses his relationship with his father.  He said:

    “In the long term it would be a terrible loss for a child, equivalent to the death of a parent, but in some ways worse because there is no finality.  It creates a pre-disposition to anxiety or depression or identity problems.”

    He recommended a change of residence on the basis that:

    “To re-establish a relationship with the father, the child needs to be in the care of the father.  My recommendation is the reverse of that: to live with the father and have gradually increasing time with the mother that could end in a shared arrangement”.

35. Since June 2009 the mother has done little or nothing to facilitate K’s spending time and communicating with the father.  She has denied him the opportunity to participate in making major long-term decisions about K’s life.

36. As noted, the father failed to take steps to ensure that K spent time with him after June 2009.  He works on only two days per week, by choice, so his child support liability is insubstantial.

Conclusion

1. Resolution of this matter involves a balancing of strong competing considerations.  On the one hand, there is compelling evidence of risk to K’s psychological development if there is no change to the present circumstances.  On the other hand, he is closely bonded to his mother and likely to suffer emotional pain if he is separated from her.

2. There were several examples in the evidence of the mother’s sense of entitlement.  These instances include her behaviour with Ms B, her multiple applications for apprehended violence orders and her untruths to the Department of Housing to achieve her own ends.  It is of considerable concern that she appears to be abrogating to V part of her parenting responsibility for K.  I have no basis for optimism that these entrenched behaviour patterns of dependency and entitlement will moderate at any time in the foreseeable future.

3. I am not persuaded that the mother has genuinely abandoned her very negative view of the father.  In my opinion, she more likely changed her position because she realised that there was a genuine prospect that K may be removed from her care.  I cannot be satisfied that she is either willing or able to foster K’s relationship with his father.  I conclude that he is thus at risk of the serious psychological consequences predicted by Dr R.  He is also at risk of being put in a position of having to meet some of the mother’s dependency-based needs.

4. I am satisfied that the father would promote K’s relationship with the mother and V.  He would have the support of Ms H, who has demonstrated that she appreciates the importance of his father in her son’s life.  I am persuaded that the father and Ms H would do all that they can to assist K to settle into their household.  They both gave evidence that they could organise their work commitments so that one of them is always available for K.

5. On balance, I have concluded that a change in residence would be in K’s best interests.  The father should immediately arrange for him to receive counselling to assist him in coming to terms with this change.

6. Dr R made no recommendation for supervision of K’s time with the mother.  In his report he suggested that there be no contact for one month, followed by a graduated increase in time.  As noted, in his oral evidence he entertained the prospect of a graduated arrangement which could lead to shared care.  He recommended that K’s time with the mother increase over a 5 month period.  I will adopt these recommendations.

7. The mother should understand clearly that the success of the proposed arrangements lies substantially in her hands.  If she jeopardises this regime there is a very real prospect that K’s time with her could be severely curtailed and probably take place only under supervision.  She should also understand that she is under a legal obligation to return K to the father at the conclusion of all periods of time prescribed by the orders.  It is not for K to decide whether or not he will return to the father.

8. I propose to order that the father have sole parental responsibility for making major long-term decisions as to K’s care, welfare and development.  It is practical for the party who has his care from time-to-time to have sole responsibility for making decisions about his day-to-day care, welfare and development.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 8 August 2011.

Associate:     

Date:              8 August 2011