Stanbrook & Holloway
[2021] FamCA 528
•13 August 2021
FAMILY COURT OF AUSTRALIA
Stanbrook & Holloway [2021] FamCA 528
File number(s): MLC 5839 of 2016 Judgment of: HARTNETT J Date of judgment: 13 August 2021 Catchwords: FAMILY LAW – PARENTING – equal shared parental responsibility – sole parental responsibility for education and medical treatment –residence of the child – time spent with the father – risk to child in spending time with a parent – drug abuse allegations – allegations that the mother medically neglected the child – child abuse allegations – the child’s exposure to stepmother’s negative views of her mother- psychological harm to the child established. Legislation: Evidence Act 1995 (Cth) s. 140
Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 61DA
Family Law Rules 2004 (Cth)
Cases cited: M v M (1988) 166 CLR 69
Mulvany & Lane (2009) FLC 93-404
Ridley & Ridley (No. 2) [2020] FamCA 549
Number of paragraphs: 130 Date of last submission/s: 18 March 2021 Date of hearing: 30 September 2019 to 3 October 2019;
12 March 2020; and
23 to 25 November 2020Place: Melbourne Counsel for the Applicant: Mr Connell up to and including 25 November 2020 Solicitor for the Applicant: John Connell Legal up to and including 5 February 2021 Counsel for the Respondent: Mr Fuller up to and including 3 October 2019 In person up to and including 25 November 2020 Solicitor for the Respondent: Nicholes Family Lawyers up to and including 25 February 2020 Counsel for the Independent Children’s Lawyer Mr Marchetti
Solicitor for the Independent Children’s Lawyer Peter Lynch Solicitor
ORDERS
MLC 5839 of 2016 BETWEEN: MS STANBROOK
Applicant
AND: MR HOLLOWAY
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
13 AUGUST 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be and are discharged.
2.The mother have sole parental responsibility for the child Z born on … 2014 (“the child”) with respect to all medical and educational matters pertaining to the child.
3.The mother and father, subject to order 2 herein, otherwise have equal shared parental responsibility of the child.
4.The child live with the mother.
5.The child spend time and communicate with the father as follows:
(a)during school term periods;
(i)commencing on Saturday 21 August 2021, each Saturday from 10.00am to 8.00pm;
(ii)commencing on Saturday 18 September 2021, each alternate weekend from the conclusion of school (or 3.30pm) on Friday until the commencement of school (or 9.00am) on Monday and same should continue to occur during term 3 2021 school holidays.
(b)during each of the term holidays commencing 2022 (being term 1, 2, and 3) for the first week of the holidays, commencing from the conclusion of school on the last day of school term and concluding at 3.30pm seven (7) days later;
(c)During the long summer school holidays commencing in 2021:
(i) In even numbered years:
A.From the conclusion of the school term to 4.00pm on 25 December.
B. From 4.00pm on 2 January to 4.00pm on 9 January.
(ii) In odd numbered years:
A. From 4.00pm on 25 December to 4.00pm on 2 January.
B. From 4.00pm on 9 January to 4.00pm on 16 January.
(d)By telephone or video conference at 5.00pm for no more than 30 minutes each week that Z is in the mother’s care and on the father’s birthday and on such other times and dates as agreed in writing.
(e)On such other times and dates as agreed in writing.
6.Notwithstanding any other provision, Z spend time with each of the parties for special occasions at times to be agreed between the parties in writing, and failing agreement as follows:
(a)On Father's Day weekend, with the father from the conclusion of school Friday until the commencement of school Monday if Z is not in the father’s care that weekend.
(b)On Mother's Day weekend, with the mother from the conclusion of school Friday until the commencement of school Monday if Z is not in the mother’s care that weekend.
(c)For Z’s birthday, if Z is not otherwise spending time with a party that day, with that party from the conclusion of school until 7.00pm if it is a school day and from 12noon to 7.00pm if it is a non-school day.
7.The time that Z spends with the father is subject to the following conditions:
(a)The father will not cause or permit Z to attend on or be presented to any medical practitioner, psychologist, counsellor or other health professional without the mother’s consent except in the case of a medical emergency.
(b)The father will not allow any other person to cause or permit Z to attend on or be presented to any medical practitioner, psychologist, counsellor or other health professional without the mother’s written consent.
(c)The father will not permit Z to be in the unaccompanied care of his wife, Ms Holloway and/or Ms Holloway’s mother, Ms B for a period of 3 months from the date of these orders.
(d)The father will not discuss with Z any evidence in these proceedings or any concerns raised in these proceedings and/or allow Z to remain in the presence or hearing of any third party that discusses these proceedings or any concerns raised in these proceedings.
(e)In the event of a medical emergency, the father will immediately contact the mother by telephone and provide details of the medical emergency, including the names and contact telephone numbers of any treating medical professionals, the nature and circumstances of the injury and any proposed medical treatment.
8.Z communicate with the mother by telephone or video conference at 5.00pm for no more than 30 minutes each Saturday and Tuesday that Z is in the father’s care or at such other times and dates as agreed in writing.
9.The father is entitled to receive such information from Z’s school as is ordinarily provided to parents, including school newsletters, notices, reports and photograph order forms. The father is to make all necessary arrangements directly with the school in this regard.
10.The mother is at liberty to take Z out of Australia for holidays provided that:
(a)Z is not taken to an overseas destination where the Australian government warning for that destination is 'Reconsider Travel' or 'Do Not Travel' or equivalent warning.
(b)Z is not taken to an overseas destination that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
(c)The mother provides the father with no less than 30 days' notice of the planned travel.
(d)The mother provides the father with a detailed travel itinerary, including receipts for return flights and contact details for Z while they are overseas.
(e)The mother facilitates communication between Z and the father while Z is overseas.
11.Each party do all things as may be required to obtain and renew an Australian passport for Z.
12.Each party is restrained by injunction from denigrating the other party, and/or the other party's family while Z is in their presence or hearing, and/or allowing Z to remain in the presence or hearing of any third party who is denigrating the other party or the other party's family.
13.Each party is restrained by injunction from discussing the family law proceedings with Z and/or in the presence or hearing of Z and/or showing Z any documents relating to the family law proceedings.
14.The parties are restrained from using any other name for Z other than, Z.
15.The parties are restrained from encouraging or permitting Z to refer to any person except her biological parents as her mother or father.
16.For the purpose of these orders:
(a)School term holidays commence from the conclusion of school and end at the start of the next school term.
(b)Following term holidays and the long summer holidays, the school term arrangements resume in the same pattern that would have occurred had the arrangements continued throughout the holiday periods.
(c)Save where changeover takes place at school and save as otherwise agreed in writing, changeover occur at McDonalds in Suburb C.
(d)The parties personally attend changeover, save that they are each be entitled to nominate one other person to attend changeover in substitution in case of emergencies.
17.Each party is at liberty to provide a copy of these orders to any child care/school which Z attends, or any medical practitioner, psychologist, counsellor or other health professional treating Z.
18.Each party will provide the other party with no less than 28 days’ notice of any proposed change of address and each party will keep the other party informed as soon as practical of any change to their telephone number and email address.
19.The father is required to obtain leave of the Court before making an application to vary these orders, and any such application for leave be listed to JJ Hartnett in the first instance (if at all possible), pursuant to section 64B(2)(g) of the Family Law Act 1975 (Cth).
20.Otherwise all extant applications be dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stanbrook & Holloway has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
PRELIMINARY
The proceeding concerns the parties’ child, Z born in 2014 (“Z”), who is now aged 7 years. Litigation has occurred over some considerable time, first commencing in June 2016, when the Applicant mother (“the mother”) filed an initiating application in the Federal Circuit Court of Australia (the “FCC”) seeking interim and final parenting orders. On 7 November 2016, final parenting orders were made, by consent, which provided for an equal shared care regime for Z, with the parties having equal shared parental responsibility for Z.
The present proceeding commenced in the FCC on 10 December 2018, whereby the mother sought to discharge the 7 November 2016 final parenting orders. She sought that time between Z and her father be supervised. The application was made in the context of allegations by the father that Z was at risk of sexual abuse by a friend of the mother, Mr D. The father had, in September 2018, sought and obtained an Intervention Order (“IVO”) to restrain Mr D from coming into contact with Z.
The trial was conducted as an in person hearing over four days between 30 September 2019 to 3 October 2019; on 12 March 2020; on 13 May 2020; and by way of Microsoft Teams hearing over the course of three days, between 23 to 25 November 2020 as it was not possible at that time to resume a face to face hearing as a result of COVID-19 lockdowns in the state of Victoria. On 13 May 2020, the Court made orders for a family dispute resolution process to occur, with the Court noting that the Victoria Legal Aid Family Dispute Resolution Service (“FDRS”) coordinator had advised the Independent Children’s Lawyer (the “ICL”), that upon the Court directing the parties to attend for FDRS mediation, available conferences could be scheduled within 15 working days. The parties participated in this mediation process, but it was not successful.
During the trial, the mother was represented by her solicitor up to and including 25 November 2020. Counsel appeared on behalf of the father up to and including 3 October 2019. When each of the mother and father’s respective legal representation ceased, each of the parties appeared as litigants in person. The ICL was represented throughout by Counsel.
On 25 November 2020, interim orders were made by the Court and with the consent of the mother and ICL. Those orders included that Z spend conditional, unsupervised time with her father. Those orders have continued in operation. They are, relevantly, as follows:
…
(7)Until further Order, the child Z, born … 2014,(‘the child’) spend time and communicate, subject to and conditional upon order 8 below, with the father as follows:-
(a)each alternate Sunday from 10.00am until 4.00pm, commencing Sunday, 29 November 2020;
(b)each Wednesday, commencing 2 December 2020, from the completion of school or 3.30pm if not a school day until 7.00pm for the purpose of having dinner;
(c)at Christmas in 2020, from 10.00am until 11.00am on Friday, 25 December 2020;
(d)on the father’s birthday (…) from the completion of school or 3.30pm until 7.00pm for the purpose of having dinner (and for the avoidance of doubt, such time will be in lieu of time on Wednesday, 10 March 2021);
(e)at all other times as agreed in writing between the parties.
(8)For the purpose of time between the child and her father, pursuant to order 7 above, such time is subject to and conditional upon the following:-
(a)the father shall not permit or cause either Ms Holloway (the step-mother) and/or Ms B (the step-grandmother) to be involved in any time spent period between the child and her father;
(b)the father shall not permit or cause either Ms Holloway (the step-mother) and/or Ms B (the step-grandmother) to come into contact, presence, sight, or hearing of the child during any time spent period between the child and her father;
(c)the father be and is hereby restrained by himself, his servants and agents, from permitting or causing the child to be presented or attend any medical practitioner (SAVE in the event of an emergency) during any period when the child is in the father’s care;
(d)the father be and is hereby restrained by himself, his servants and agents, from permitting or causing the child to be presented or attend any counsellor, psychologist, or other mental health professional during any period when the child is in her father’s care;
(e)the father be and is hereby restrained by himself, his servants and agents, from discussing the evidence or concerns raised in these proceedings in the presence or hearing of the child.
(9)The time spent arrangements for the child pursuant to order 7 above, shall be suspended between 11am on 25 December 2020 until 3.30pm on 30 December 2020, when the child shall otherwise be in the mother’s care.
(10)For the purpose of changeover pursuant to these orders, save as may be agreed in writing, changeover shall be effected at the Suburb E McDonalds Restaurant (Suburb E) at the commencement and conclusion of time between the child and her father.
…
Written submissions were subsequently filed by each of the parties with the final submissions being filed on 18 March 2021.
The issues for determination by the Court are:
(a)it is in Z’s best interests for the mother to be allocated sole parental responsibility in respect of Z’s education and medical treatment, and otherwise there be equal shared parental responsibility of Z or is it in Z’s best interests for the parties to have equal shared parental responsibility in respect of all matters of that type;
(b)the residence arrangements for Z;
(c)the time that Z spends with each of her parents and the presence of any risk to the child in the care of either parent; and
(d)the exposure of Z to Ms Holloway views of the mother, and Ms Holloway’s consequential behaviours.
The mother sought the following orders:[1]
[1] Applicant mother’s written submissions filed on 18 March 2021.
(2)sole parental responsibility for educational and medical decisions for the child;
(3)the parties otherwise have equal shared parental responsibility for long term decisions of the child;
(4)the father will be entitled to receive such information from the child’s school as is ordinarily provided to parents, including school newsletters, notices, reports and photograph order forms;
(5)the child spend limited time with the father, his wife, Ms Holloway and his wife’s mother, Ms B because they are likely to cause psychological harm to the child and damage to the child’s relationship with the mother;
(6)the child continue to live primarily with the mother;
(7)the child spend time with and communicate with the father:
(a)from the conclusion of school on the last Friday of each calendar month (or 4:00pm if a non-school day) to 4:00pm on Saturday;
(b)by telephone or video conference at 5:00pm for no more than 30 minutes once each week, as well as on the child’s birthday, Christmas Day and on the father’s birthday or on such other times and dates as agreed in writing;
(c)the father will be permitted to send to the mother’s address a gift and a card for the child’s birthday and for Christmas and the mother will facilitate the child preparing and sending a response to the letter to the father’s address;
Alternative live and spend time arrangements
(8)the child live with the mother;
(9)the child spend time and communicate with the father:
(a)during the school term period, each alternative weekend from the conclusion of school Friday (or 4:00pm if a non-school day) to the beginning of school Monday (or 9:00am if a non-school day);
(b)during the school term holidays, from the conclusion of school on the last day of the school term for a period of 7 nights concluding at 4:00pm;
(c)during the long summer school holidays:
(i)in even numbered years:
A.from the conclusion of the school term to 4:00pm on 25 December;
B.from 4:00pm on 2 January to 4:00pm on 9 January;
(ii)in odd numbered years:
A.from 4:00pm on 25 December to 4:00pm on 2 January;
B.from 4:00pm on 9 January to 4:00pm on 16 January;
(d)by telephone or video conference at 5:00pm for no more than 30 minutes each week that the child is in the mother’s care and on the father’s birthday and on such other times and dates as agreed in writing;
(e)on such other and dates as agreed in writing;
(10)notwithstanding any other provision, the child will spend time with each of the parties for special occasions at times to be agreed between the parties in writing, and failing agreement as follows:
(a)on the Father’s Day weekend, with the father from the conclusion of school Friday until the commencement of school Monday if the child is not in the father’s care that weekend;
(b)on the Mother’s Day weekend, with the mother from the conclusion of school Friday until the commencement of school Monday if the child is not in the mother’s care that weekend;
(c)for the child’s birthday, if the child is not otherwise spending time with a party that day, with that party from the conclusion of school until 7:00pm if it is school day and from 12 noon to 7:00pm if it a non-school day;
(11)the child will communicate with the mother by telephone or video conference at 5:00pm for no more than 30 minutes each Saturday and Tuesday that the child is in the father’s care or at such other times and dates as agreed in writing;
Interstate and overseas travel
(12)the mother will be at liberty to take the child out of Australia for holidays provided that:
(a)the child is not taken to an overseas destination where the Australian government warning for that destination is ‘Reconsider Travel’ or ‘Do Not Travel’ or equivalent warning;
(b)the child is not taken to an overseas destination that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;
(c)the mother provides the father with no less than 30 days’ notice of the planned travel;
(d)the mother provides the father with detailed travel itinerary, including receipts for return flights and contact details for the child while they are overseas;
(e)the mother facilitates communication between the child and the father while the child is overseas;
(13)each party will do things as may be required to obtain and renew an Australian passport for the child;
Restraints and injunctions
(14)the time that the child spends with the father will be subject to the following conditions:
(a)the father will not cause or permit the child to attend on or be presented to any medical practitioner, psychologist, counsellor or other health professional without the mother’s consent except in the case of a medical emergency;
(b)the father will not allow any other person to cause or permit the child to attend on or be presented to any medical practitioner, psychologist, counsellor or other health professional without the mother’s consent;
(c)the father will not permit the child to be in the unaccompanied care of his wife, Ms Holloway and/or Ms Holloway mother, Ms B;
(d)the father will not discuss with the child any evidence in these proceedings or any concerns raised in these proceedings and/or allow Z to remain in the presence or hearing of any third party that discusses these proceedings or any concerns raised in these proceedings;
(e)in the event of the medical emergency, the father will immediately contact the mother by telephone and provide details of the medical emergency, including the names and contact telephone numbers of any treating medical professionals, the nature and circumstances of the injury and any proposed medical treatment;
(15)each party is restrained by injunction from denigrating the other party and/or the other party’s family while the child is in their presence or hearing and/or allowing the child to remain in the presence or hearing of any third party who is denigrating the other party or the other party’s family;
(16)each party is retrained by injunction from discussing the family law proceedings with the child and/or in the presence or hearing of the child and/or showing the child any documents relating to the family law proceedings;
(17)the parties are restrained from using any other name for the child other than her present name, Z;
(18)the parties are restrained from encouraging or permitting the child to refer to any person except her biological parents as her mother or father;
Miscellaneous provisions
(19)for the purpose of these orders:
(a)school term holidays will commence from the conclusion of school and end at the start of the next school term;
(b)following term holidays and the long summer holidays, the school term arrangements will resume in the same pattern that would have occurred had the arrangements continued throughout the holiday periods;
(c)save where changeover takes place at school and save as otherwise agreed in writing, changeover will occur at KK’s in Suburb C;
(d)the parties will personally attend changeover, save that they will each be entitled to nominate one other person to attend changeover in substitution in case of emergencies;
(20)each party will be at liberty to provide a copy of these orders to any child care/school which the child attends, or any medical practitioner, psychologist, counsellor or other health professional treating the child;
(21)each party will provide the other party with no less than 28 days’ notice of any proposed change of address and each party will keep the other party informed as soon as practical of any change to their telephone number and email address; and
(22)the father be required to obtain leave of the court before making an application to vary these orders, and any such application for leave be listed to JJ Hartnett in the first instance (if all possible), pursuant to section 64B(2)(g) of the Family Law Act 1975 (Cth).
The father sought the following orders:
(23)that the mother and father have equal shared parental responsibility of the child;
(24)that the father spend time with the child during school term periods, each alternative week from the conclusion of school (or 3:30pm) on Thursday until the commencement of school (or 3:30pm) the following Thursday; or as otherwise agreed between the parties in writing;
(25)if the mother is unable to substantiate her claims and allegations made to professionals against her father in relation to family violence or poor mental health that the mother pays for the father’s costs of and incidental to these proceedings;
The ICL sought the same orders that were sought by the mother.
MATERIAL RELIED UPON
The Applicant mother relied upon the following material:-
(a)affidavits of the mother filed on 10 December 2018; 9 August 2019; and 31 August 2019;
(b)affidavit of Ms F filed on 31 August 2019;
(c)affidavit of Ms G filed 31 August 2019;
(d)Family Report by Ms H (Psychologist) dated 26 February 2019; and
(e)email, text message and recordings between the parties (exhibited by ICL on 5 February 2021).
The Respondent father relied upon the following material:-
(a)affidavits of the father filed on 16 November 2020; 26 February 2020; 16 September 2019; 18 July 2019; 27 February 2019; and 24 December 2018;
(b)affidavits of Ms Holloway filed 16 September and 27 February 2019;
(c)affidavit of Mr J filed 9 October 2020;
(d)affidavit of Ms K filed 23 April 2020;
(e)affidavit of Dr L filed 16 September 2019;
(f)affidavit of Ms M filed 26 February 2020;
(g)affidavit of Ms N filed 26 February 2020;
(h)affidavit of Mr N filed 26 February 2020; and
(i)various exhibits which were tendered and marked F1 to F5 at the final hearing.
Additional to the material already put before the Court by the other parties, the ICL relied upon the following:
(a)Family Report by Ms H (psychologist) dated 26 February 2019;
(b)Psychological Assessment of the father by Ms O filed 18 July 2019;
(c)Psychological assessment of the mother by Ms O filed 1 August 2019;
(d)affidavit of Ms P (Observational Report) filed 28 April 2020;
(e)affidavit of Ms P (Observational Report) sworn 27 September 2019[2] and report of 18 periods of supervision;[3]
(f)Q Services Observational Report dated 30 September 2019 authored by Ms P;[4]
(g)DHHS s. 69ZW Report dated 25 February 2019 by Ms NN;[5] and
(h)communication between the parents (email, text and recordings).[6]
[2] ICL exhibit number 3.
[3] ICL exhibit number 6.
[4] ICL exhibit number 2.
[5] ICL exhibit number 7.
[6] ICL exhibits numbers 1 and 4 tendered on 5 February 2021.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[7]
[7] Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].
BACKGROUND
The mother was born in 1979 and is now 41 years old. At the time of the hearing, she worked part-time as a Consultant at R Company where she earned approximately $39,000 per annum.
The father was born in 1981 and is now 40 years old. At the time of the hearing, he worked as an Technician for the S Organisation. He had been an employee there for nearly 6 years. He earned approximately $89,440 per annum.
The parties met in August 2010; commenced their cohabitation in or about late 2011; and married in late 2012. Z was born in 2014. The parties initially separated, under the one roof, in mid-2015 when Z was approximately 14 months old. They separated on a final basis in late 2015.
There is a protracted IVO history between the parties. The father applied for an IVO against the mother in March 2017, which was successfully resisted by the mother and was dismissed in December 2017. In October 2017, the mother sought and obtained an IVO against the father. That IVO (through extension) continued to operate at trial.
In June 2016, the father began a relationship with Ms Holloway. They married in late 2017, when Z was 2 years and 8 months of age. In December 2018, the present proceeding commenced.
On 5 March 2019, at an interim hearing in the FCC, her Honour Judge Small determined, that until further order, Z spend time with her father on a supervised basis. This order followed an earlier order made by her Honour where provision had been made for Z to spend daytime periods with her father that were not supervised and for Z to live with her mother. The matter was transferred to the Family Court of Australia on 5 March 2019.
Time between Z and her father continued on a supervised basis by Court order. The time-spent arrangements were impacted by the effects of COVID-19 commencing March 2020. No time spent with occurred between Z and her father between 28 March 2020 and November 2020, for reasons explained hereafter.
During the continuation of the hearing on 23 November 2020, the ICL indicated to the Court, the ICL’s support for Z to spend time with her father, unsupervised, to the exclusion of Ms Holloway for at least an initial period. Suggested periods of time were daytime and with a frequency at least fortnightly. The mother agreed with that suggestion. The father did not agree, saying if unsupervised time were to occur, it should occur with the father and stepmother both present. The father was not prepared to consent to any interim order as proposed by the ICL and the mother.
Despite the father’s refusal to agree to any such order, he did indicate to the Court that he would abide any order made by the Court. Thus, following the hearing on 25 November 2020, orders were made for Z to spend unsupervised daytime periods with her father with conditions imposed including that Ms Holloway did not come into contact with the child. This interim restraining order was made, amongst other parts of the evidence, on the evidence of the Family Report writer, Ms H. In her Family Report dated 26February 2019, Ms H identified her concern as to the: “entrenched nature of the parental discord, and the likelihood of future litigation…” [8] Ms H observed that a part of this discord, was that the father did not demonstrate the capacity to contain or shield Z from Ms Holloway’s negative views about her mother, and that emotional harm was caused to Z as a consequence.[9]
[8] Family Report by Ms H dated 26 February 2019 at paragraph 119.
[9] Family Report by Ms H dated 26 February 2019 at paragraph 120.
Standard of Proof
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
Civil proceedings: standard of proof
(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 that the 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.
Statements of fact in these reasons are the findings of fact on the balance of probabilities.
Statutory framework and relevant legal principles
Part VII of the Act provides the statutory framework in which the Court’s jurisdiction, power and discretion to make parenting orders (as defined in s 64B) is exercised. The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and principles underlying those objects.
The principles underlying the objects of Part VII of the Act are set out in s 60B(2) of the Act, and are (except when it is or would be contrary to a child’s best interests):-
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(2) of the Act sets out primary matters to be considered by the Court and provides as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Section 60CC(2A) requires the Court to give greater weight to s 60CC2(b).
Pursuant to s 60CC(1) of the Act:-[10]
…in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
[10] Family Law Act 1975 (Cth), s 60CC(1) and (5).
In Mulvany & Lane (2009) FLC 93-404, Finn, May and Thackray JJ observed at 76-77 as follows:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
In this proceeding, each of the two primary considerations in s 60CC(2) are significant in a determination of this matter as to whether it is in Z’s best interests to live in an equal shared care arrangement between each of her parents or to live with her mother and spend periods of unsupervised time with her father, and whether any conditions should be imposed upon that time spent.
The additional considerations as set out in s 60CC(3) must also be considered by the Court. Specific reference to each and every of those considerations is unnecessary in these reasons.[11] I have however considered each and every of those additional considerations. What I shall include within these reasons are a discussion of the evidence, and my findings in relation to those considerations that are central to the facts of this particular case.
[11] Mulvany & Lane (2009) FLC 93-404 at [77].
Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 60(1)(B)). Shared parental responsibility is to be exercised in respect of decisions relating to, “major long-term issues” concerning the child (s 65DAC), being matters such as: education; religion and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent (s 65DAE).
The presumption of equal shared parental responsibility is set out in s 61DA of the Act and it does not apply where there are reasonable grounds to believe that a parent has abused a child who is the subject of the proceedings, or another child of that parent’s singular household at the time or engaged in family violence (s 61DA(2)). Further, the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child (s 61DA(4)).
If the presumption of equal shared parental responsibility does apply, or the Court is otherwise satisfied on the evidence that it is in a child’s best interests to make an order for equal shared parental responsibility, then the Court must consider whether it is in the child’s best interests and reasonably practicable to spend equal time with each parent or, if not equal time, whether it is in a child’s best interests and reasonably practicable for a child to spend substantial time with each parent.
In this proceeding, neither the mother nor the ICL seek an order for equal shared parental responsibility in respect of all long-term issues that relate to Z. They seek that the mother have sole parental responsibility for the child with respect to all educational and medical issues concerning the child. Otherwise, the mother and ICL seek that subject to that constraint, the parents have equal shared parental responsibility for Z. The mother and the ICL submit such order is in Z’s best interests. The father seeks an order that the mother and the father have equal shared parental responsibility for Z.
The Court has concluded that there are reasonable grounds to believe in this case that Z’s father has engaged in conduct causing psychological harm to Z. Accordingly, the presumption in s 61 DA of the Act of equal shared parental responsibility when making parenting orders, does not apply. Such presumption is also rebutted by the best interests considerations as referred to in s 61DA(4), as is explained in these reasons.
THE EVIDENCE
Ms Holloway is the wife of the Respondent father, and Z is her stepdaughter. Ms Holloway became increasingly involved in the care of Z following November 2016, when Z commenced to spend 7 nights each fortnight in her father’s care. She had however become involved in Z’s care almost immediately upon commencing her relationship with the father in June 2016. Some aspects of her primary involvement in that care are set out hereafter. In June 2016, Z was only 2 years and 2 months of age.
Dr L has been Ms Holloway’s registered general practitioner since 2007. She is also the general practitioner of Ms Holloway’s mother, Ms B. Z commenced to be treated by Dr L in August 2016, at the instigation of Ms Holloway. Neither Ms Holloway’s, nor the father, told the mother that Z was attending upon a second doctor, Z already having a treating General Practitioner (“GP”). Z thus lost her continuity of care with one doctor. This situation evolved because Ms Holloway and the father were concerned about the treatment then provided by Z’s treating GP. They did not however discuss their concerns with the mother.
One of the father and Ms Holloway’s concerns as to the mother providing proper medical care to Z, arose upon the mother providing to the father a prescription for medication for Z. The script made provision for asthma medication. The father and Ms Holloway claimed that they were not aware that Z had an asthma condition. The mother disputes this. Ms Holloway discussed with Dr L her concerns as to the provision of asthma medication by the mother to Z. Dr L recommended that the father and Ms Holloway take Z to attend upon a respiratory specialist. They did so. On 19 February 2017, Z had a consultation with Professor T, Paediatric Respiratory and Sleep Physician. The father did not speak with the mother prior to the appointment being made, and nor did he invite her to the appointment, only informing her of it at a later time. Likewise, when Dr L referred Z to a general paediatrician, as sought by the father and Ms Holloway, who consulted with Z on 18 February 2017, the mother was not informed that the father and Ms Holloway were seeking such referral. Upon obtaining the referral, the father and Ms Holloway emailed the mother stating that Z had, “behavioural issues.”[12] They asked the mother whether she wished to attend the appointment. From the mother’s perspective, and that of Z’s treating GP, Z was generally a happy and healthy little girl, who loved each of her parents and who was developing in an age appropriate manner. This type of correspondence emanating from the father and Ms Holloway was correspondence which the mother considered to be harassing and frightening. The mother’s evidence was that she was intimidated by this correspondence, and its tone and/or content, as she was in respect of much of the voluminous correspondence which emanated from the father. Her fear had caused her to not engage with the father, in particular, because the father wrote to the mother in 2016 indicating that she was not to contact him under any circumstances in the future, unless it was a matter of a serious health issue in respect of Z.
[12] Transcript dated 3 October 2019, page 59 at line 3.
On 1 May 2018, there was a further referral from Dr L for Z. On this occasion Z was referred to Mr U, psychologist. Z underwent counselling with that psychologist for a period of some 12 months. For most of those appointments, Z was accompanied by Ms Holloway. The mother was never advised of these counselling attendances by the father, Ms Holloway or Z. The purpose of the attendance upon the psychologist, I find, was to have Z make a disclosure, which would assist the father in obtaining a residence order for Z in his favour. Indeed, the father’s own evidence was that he did not tell the mother he was taking the child to counselling, because he believed there would be disclosures in counselling made by Z that would indicate a risk to Z in her mother’s care. There was, as said by Ms H, the single expert, “an element of him fishing for risk or for information that would confirm risk.” Such desired disclosure did not however eventuate.
Some two weeks after Z’s counselling had commenced and on 31 May 2018, the father made his first notification to the Department of Health and Human Services (“DHHS”). He alleged, in respect of the mother: substance abuse; mental health issues; physical abuse and medical neglect of Z. The father expressed to DHHS that he wished to return to Court and obtain “full custody of Z.” In all his dealings with DHHS, the father was actively supported by Ms Holloway who made her own notifications in 2018.
On 7 June 2018, there was a further notification in respect of the mother’s care of Z as made by the father.
On 12 July 2018, the father made a third notification to DHHS citing concerns regarding bruising sustained by Z; alleged comments of a sexual nature made toward Z; and a claim that the mother was getting really angry, and chasing the child around the home and trying to hit her.
On 18 July 2018, the father made a fourth notification supported by Ms Holloway. On this occasion, it was reported that the mother became angry with Z, tried to hit her, and locked Z outside the home. Ms Holloway advised that the mother had locked Z outside the house during a storm and was referred to as a “gorilla” by the child, since it was claimed that the mother had put on a gorilla mask and chased the child around the house. It was also reported that the mother scratched Ms Holloway’s car, and smashed the windscreen of the car whilst it was parked at Ms Holloway workplace. These notifications in respect of Ms Holloway’s car related to earlier events dating back some 6 months. Ms Holloway assumed it was the mother who caused such damage on the basis that Ms Holloway was marrying the father.
On 7 August 2018, Ms Holloway notified DHHS that the mother had used cough medicine inappropriately in her efforts to put Z to sleep. Further, Z had returned from her mother’s care to the father with bruising and a red mark on her lower back, which the child was unwilling to talk about saying, “can’t say it, otherwise mummy would go to jail.”
All of the above notifications were allegations made by either the father and/or Ms Holloway in respect of the child being at risk in the mother’s care. Also around this time, there was a consultation for Z with a Paediatric Gastroenterologist upon further referral of Z to a medical specialist as made by Dr L.
On 13 August 2018, the father collected Z from school at about 5.30pm. He took Z to the supermarket on the way home. He claimed that whilst in the queue at the checkouts, Z made a disclosure to him which he considered concerning. That disclosure commenced with Z saying to him that she should, “Stick my little finger in your bum bum.” The father commenced, on departure from the Supermarket, to audiotape he and Z’s discussions. The recordings of Z which followed were before the Court in evidence, as were the police reports made in respect of the matter.
On return home to Ms Holloway, the father requested of Z to tell “[June]” (Ms Holloway’s nickname) what Z had said to him. Z spoke on the topic as encouraged by the father and Ms Holloway. The father and Z, together with Ms Holloway, subsequently attended at a police station where Z underwent a video and audio-recorded evidence gathering process (“VARE”). The mother was not informed as to these matters until the police informed her on the following day that Z had undergone a VARE. Z was 4 years and 2 months old at the time. Prior to going to the police, Ms Holloway has said to the father, “you will need to tell [Mr U]”. Mr U was Z’s psychologist and the person to whom both the father and Ms Holloway expected Z to make any disclosures which might result in an alteration of the then existing final parenting orders.
The police report made on 13 August 2018, stated relevantly, as follows:
At approx 18:00hrs subject made the comment at the checkout, “I’m going to lick my pinkie and stick in your bum.” Subject’s father walked subject to his car and started recording the subject while having chat to same. Subject makes similar disclosures like, “Mr D came and stuck his finger in my bum” and “Mr D licked my bum. My back bum.” Subject’s father drove subject to his house in Suburb V and asked his girlfriend Ms HOLLOWAY to have chat to subject. Three recordings were made and each inadmissible due to the continuing leading closed questions asked.
Note: At time of report, there has been no disclosure by subject to any persons at her childcare where she had spent the previous 8 hours.
Subject's father and his partner drove the subject to the W Police Station where they met DSC X … and DSC Y … from W Police SOCIT at 19:45 hrs. DSC X and DSC Y spoke to the subject's father about options and process and the father insisted police attempt VARE of subject.
At 20:38 hrs, DSC X began VARE with subject which was extremely difficult due to subject's young age and attention span. Subject initially struggled with truth and lies and the following was stated:
At some time in last couple of days, some of subject’ family were possibly at movies and subject possibly at home of suspect (Mr D) and it’s uncertain who else was at home with subject. Subject was watching her iPad with her leggings on and then Mr D possibly stuck his finger in her bum and kissed/licked her bum with her leggings up. The subject stated her leggings were up but Mr D kissed her skin.
Note: It is to be noted that in the 3 recording made by the subjects father, the subject also mentioned Mr D licks his own bum like a cat and put his head through his front bum and licked his back bum.
VARE not enough to establish a crime has been committed and enquiries to be made with subject’s mother over coming days to determine movement of family on weekend in question.
Subject’s father emailed through his 3 voice recordings and family left the W Police Station on 13-AUG-2018 at 21:33 hrs
The police report made on 9 September 2018, stated, relevantly, as follows:
…recordings made by father and both VARES.
In order of occurrence is first recording he made while driving home from the supermarket. It is the earliest documentation of what the subject says. lt runs for 1 minute and 30 seconds. It starts with the subject talking about car crashes then Mr Holloway … [sic] (…) [sic] asks a question and Z [sic] (…) replies.
THE FATHER Hey what did you say to daddy in the shopping centre when we were walking out, what were you going to do to daddy’s bum bum.
THE CHILD Stick my little finger in your bum bum
THE FATHER Who does that?
THE CHILD Me (then laughs)
THE FATHER How do you know…who who does that? Has somebody?
THE CHILD My little. [June] ([June] is the current partner of Mr Holloway (Ms HOLLOWAY))
THE FATHER Has somebody stuck their finger in you[r] bum bum?
THE CHILD No, they just lick their finger and put them my bum
THE FATHER Who did that?
THE CHILD Mummies, …
THE FATHER Really
THE CHILD No, I mean Mr D
THE FATHER Mr D or Mummy …
THE CHILD Mr D
THE FATHER Really
THE CHILD Mr BB and Mr CC and Mu…Mummy … were at the movies and Mr CC was only staying home with me and then he his get my and then he lick his little finger and put it in my bum
THE FATHER Who did that, who put the finger in the bum? ·
THE CHILD Mr CC
THE FATHER Mr CC put his finger
THE CHILD No, no, actually Mr D (Laughs)
THE FATHER It was Mr D who put his finger in your bum
THE CHILD Yes
THE FATHER Did you say stop it Mr D?
THE CHILD Yea and they and he keep doing it
THE FATHER And he kept on doing it?
THE CHILD Yea and when you said stop I stopped doing it, didn’t I?
THE FATHER Mmmmm
THE CHILD Mr CC is very naughty he’s going to go to jail.
The recording then stops.
The next recording starts as Mr Holloway is arriving home and is met by Ms HOLLOWAY (MS HOLLOWAY) with him telling the subject to hold his phone and that he wanted her to tell "June" what happened on the weekend with Mr D. It runs for 9 minutes and 15 seconds. Excerpts below:
THE CHILD Mr D stick his finger in my bum and he licked my bum. (This is the first sentence she says.)
MS HOLLOWAY So what's going on?
THE CHILD Mr D stick his finger in my bum and licked it with his tongue, in my bum
MS HOLLOWAY Where about in your bum, what’s a bum
THE CHILD Inside
THE FATHER The way it started June is we were sitting, we were paying for our groceries and Z said I am going to lick my pinkie and stick it in your bum
THE CHILD No I wasn’t
THE FATHER And I said
THE CHILD I didn’t say that
THE CHILD No I didn’t say I going to lick my finger and put it in your bum
THE FATHER You said you were going stick your pinkie, lick your pinkie and put it in my bum
THE CHILD We went to England
THE CHILD …everybody else were at the movies and me and Mr D were at home
MS HOLLOWAY So when Mr D stuck his finger in your bum where was Ms DD and Mr DD?
THE CHILD They were at the movies?
MS HOLLOWAY So it was just you and Mr D?
THE CHILD Yea
MS HOLLOWAY Why didn’t Ms DD and Mr DD stay home?
THE CHILD No just Mr DD stayed home, both of them stick their stuff in my bum
MS HOLLOWAY It was just Mr DD?
THE CHILD Yea
The conversation goes on with more leading questions about the others, Mummy … not coming home, the child going to sleep and then waking the next morning and that's when mummy came home.
The next recording was made as they were driving to W Police SOCIT and runs for 6 minutes and 33 seconds.
Excerpts are below.
THE FATHER Findlay, [sic] when did Mr D lick his finger and put his finger in your bum?
THE CHILD When I was watching television, the iPad
THE FATHER Yesterday?
THE CHILD Yea
THE FATHER Did you tell mummy …?
THE CHILD Yea, and she put him in his room and tell him to read books and he rade [sic] books and laid on the bed and Mummy … put him under the bed and put umm in the the… and they and she called the police and and she said put Mr D in jail and he did and he goes in the police car and he puts them to jail in the police car…………
She continues on with the story about Mr D going to jail, eating food, escaping etc staying in jail for a 100 years,
THE FATHER So what else did Mr D do to you?
THE CHILD He also stick his tongue in my bum
THE FATHER Which bum?
THE CHILD My bum
THE FATHER Your front bum or your back bum?
THE CHILD My bum bum
THE FATHER He stuck his tongue in you back bum?
THE CHILD Yea
THE FATHER Did you tell him to stop?
THE CHILD Yes but he keep doing it
THE FATHER Did you tell mummy …?
THE CHILD Yea and she put him in his room and the door locked and he was locked for a 100 years and he was sad and crying on the pillow.
The conversation goes on then
THE FATHER What else does he do to you?
THE CHILD He just licks his own bottom like a cat but he actually put his head through his front bum and licks his back bum.
At the police station she takes part in a VARE with S/D X. As outlined above she was very difficult to engage, easily distracted, struggled with truth and lies and in my opinion would not be deemed competent if the matter were to proceed to court. The allegations in the VARE are mainly touching and licking of her bottom. It was over clothing and under clothing occurring in the morning. At one stage unprompted she said “I’m telling the truth”. She repeats often about being touched on her bottom and licked on her bottom but makes no mention of him licking his finger and sticking it in her bottom, in contrast to the earlier recordings. She also makes mention that Mr DD may have been present.
…After this, at the insistence of the father, a second VARE was done with [Z]. The VARE was even more problematic than the first taking at least 10 minutes to get Findlay [sic] to even talk to police. In this VARE, whilst she was much more practiced in explaining truth and lies, she disclosed Mr D sticking his finger in her bottom, almost in line with the first recording in the car but she put this as occurring in a hotel at [the] Beach. She also said that he got poo in on his finger and licked it off. No other inquires have been made in to these further allegations.
There are multiple and glaring inconsistencies with all accounts given by Findlay [sic]. There are three separate recordings with continual leading questions and prompting by the father and his partner. She makes allegations that her father's partner, Mr CC, Mr D and Mr DD all have stuck their fingers in her bottom. She even denied telling her father in the first instance that she had ever said Mr D stuck his finger in her bottom.
On 14 August 2018, as part of the police investigation, police spoke to Ms EE, whom the police noted, “looks after Z at the childcare centre”, and “knows about the issues between her parents.” Ms EE was recorded as providing the following information:
Z is cared for 11 hours a day, five days a week. There was nil disclosures of concern' from Z yesterday (13-AUG- 2018).
Ms EE stated they record even the smallest issue with Z due to ongoing problems with father Mr Holloway, reporting their childcare to the education department. (Ms FF from Suburb GG office aware of Mr HOLLOWAY reports).
Ms EE, "(l have) absolutely no concerns for Z in [the mother’s care."& "My personal opinion is Mr Holloway is out to get mum" and "My concern is what Mr Holloway says about the mother in front of Z", and "My vibe is Mr Holloway is putting things in her (Z's) head.", "Z's behaviour is better with mum" and “If I was the mother I would be scared of Mr Holloway.”
On 14 August 2018, the police spoke also with the mother and reported as follows:
The mother instantly believed that Mr Holloway had reported something 'nasty' to police concerning Z and her. The mother extremely upset and her voice was trembling over the phone. Stated Z, her friends Mr D (…) [sic], Ms F (…) and their two children and her, spent the weekend at HH Location. The mother stated at no point during their weekend away, was Mr D alone with Z. I informed the mother what Z disclosed in voice recording and in VARE. The mother stated Z is constantly talking about bums. The mother upset about allegations and believes Mr Holloway putting same in Z's head. The mother also stated Mr D would be upset to hear about this allegation. "He is the loveliest guy and would never touch or hurt Z". I provided the mother with advice with getting a diary and recording everything, along with getting some legal advice for Family Law Court.
Conclusion:
There is no offence detected and independent person involved, Ms EE who has more involvement with Z than her own parents has absolutely no concerns with Z in the mother's care. What else is interesting is that yesterday (13-AUG-2018) Z spent 11 hours at childcare and didn't mention anything inappropriate to child care workers but within 15 minutes of being in fathers care, father had voice recordings of Z disclosing inappropriate behaviour by Mr D, [sic] along with further gibberish evident in most 4 year old conversations.
On 15 August 2018, Ms Holloway notified the police that she had made notifications to DHHS for the past six months, and that she had reported the childcare centre which Z attended to the Department of Education.
On 15 August 2018, the Sexual Offences and Child Abuse Investigation Team (“SOCIT”) investigation was closed and the father and Ms Holloway were advised that no further action would be taken.
On 20 August 2018, the father made a notification to DHHS of sexual abuse of Z by the mother’s friend, Mr D. Z underwent a further VARE on 21 August 2018. The reason for this second interview was that, on to the father’s evidence, Z had indicated to him that she wished for a second interview with the police. In her evidence, Ms Holloway agreed with the evidence of the father and said further, in respect of undergoing the second VARE that: “Z was begging for it” Ms Holloway described it as follows:
She was the kind of kid that would sleep through the night and never wake up and, suddenly, after this happened would wake up screaming hysterically in the middle of the night. She woke up at 3 am wetting herself, urine dripping down her legs, screaming uncontrollably for hours and at the end of it was saying that she had seen Mr D again and that, repeatedly, over the next, however long, we saw her in that period of time was saying that she was not wanting to go back because that’s where the bad man would get her and every time it was a handover, it just became a complete nightmare in terms of how scared she was and the crying and the screaming at night got worse and it got to the point where she was just saying, “I don’t want to see Mr D again.” We said, “We don’t know what to do. Mummy […] is not responding to us. We don’t know what to do,” and she said, “I want to go talk to the policeman,” and at the previous time she spoke to a lady. She wanted a man. She wanted a policeman in uniform and she was thinking that it was the uniform that was the person that you need to speak to, not the plain clothes SOCIT lady who was there the first time.[13]
[13] Transcript dated 3 October 2019, page 55 at lines 14-28.
The police report from the second VARE is as follows:
Subject attended with her father and stepmother. DSC JJ showed subject to VARE room as subject stated she wanted to speak to a male policeman (said via parents). Subject refused to stay in the VARE room without her parents. Attempted to get subject to remain in VARE room for about 10 minutes. Father of subject in VARE room with subject at one stage telling subject to talk about good secrets and bad secrets. All conversations with subject’s parents was micro-recorded. Eventually VARE commenced between subject and D/SGT KK and monitored by DSC JJ. VARE #....
In summary subject stated that at the [the beach] Hotel the suspect she called Mr D put his finger in her bum and licked his finger, and put it in her bum. Subject stated that the suspect pulled her pants down to put his finger in her bum. Subject showed what the suspect did with her fingers and hand and indicated repeated penetration by suspect’s finger. Subject was not able to provide context around the alleged offending at all and repeatedly stated she didn’t know to questions.
ACTION – VARE to be assessed and parents updated in due course. [14]
[14] Investigation Manager Comment 23 August 2018.
On 3 September 2018, the police record noted relevantly, as follows:
not enough information to investigate claims by subject after second VARE. (Second VARE of subject which has been demanded by her parents).
Note: Subject's second VARE also different to limited comments made by subject in first VARE. Subject in first VARE stated she went to England (HH Location) and her mum went to the movies while Mr D looked after her. Mr D stuck his finger in her bum as well as one of Mr D’s adopted children.
…
Biological mother stated she did go to HH Location with subject but at no time was Mr D alone with subject. Biological mother also stated Mr D has never looked after subject while she went to the movies. The biological mother stated she did not go to the movies for the weekend in question….
Biological Father and biological mother informed the matter will be closed due to insufficient evidence to take the allegations further.
05-SEP-2018 DSC Y …
Still being CC'ed into emails from father to childcare centre that he's been banned from attendance. Father been told to stop including me in emails that have nothing to do with SOCIT.
Please mark as complete.
On 11 September 2018, upon review of the investigation, the police squad manager reported that he had considered the following:
-Lack of particularised description and peripheral detail
-Pre-determined leading questions of parent
-Presence of a vindictive motive and apparent couching of child
-Disclosure conflicts with facts
-Case Law R v BDX (Infantile Amnesia)
and determined that there were not reasonable grounds to support the arrest of Mr D.
The outcome of the VARE assessments was that the police decided to take no further action and Mr D was not charged with any offence. On 3 September 2018, both the police and SOCIT had advised the father and Ms Holloway that no further action would be taken and that the investigation was closed. The father had earlier been advised that if he was concerned about Mr D, he should seek to obtain an IVO against him. The father had not done so. On 4 September 2018, after the closure of the investigation with no charges pending, the father sought an IVO against Mr D.
On 3 September 2018, Z’s childcare centre, MM Childcare (“the childcare centre”), wrote to the father in the following terms:
Dear Mr Holloway,
We understand our obligations for mandatory reporting of abuse and will continue to monitor all our children accordingly.
We have remained impartial to the mother and yourself throughout Z’s time at MM Childcare.
Our staff feel threatened and intimidated by your presence and do not like to be alone with you in the centre.
Your unfounded concerns and constant verbal and written accusations to our staff and management is having a major OH&S impact on our staff. We have an obligation to provide a safe work environment for our staff.
Therefore, after careful consideration we wish to advise that you will be required to make alternative arrangements as we no longer accept your presence at our service and all future interaction and communication should be directed to the providers of the service.
In the best interest of Z [sic] preparation for Primary School her enrolment will be unaffected however drop off and pick-up will need to be coordinated by other family members effective immediately.
The Police, The Department of Education and the mother will be notified that you are no longer permitted on our premises.
The father replied to this letter, on the same day, copying in various people at the childcare centre together with the mother, the police and a person in the Department of Education. The father wrote as follows:
To whom this may concern,
Due to the unsubstantiated, vexatious and defamatory comments made towards me by MM Childcare today, alongside the repeated incidents of MM Childcare failing to uphold ethical and accurate reporting standards, please consider this email as my formal written notice, to dis-enroll [sic] Z from MM Childcare, effective immediately - Monday 3rd Sept 2018. Please note that I do not authorize any further credit card charges from MM Childcare, and I would appreciate the return the bond payment of $120 being held with MM Childcare since May 2017, within the next 7 days.
As previously communicated, both to yourself, DHSS and to the Department of Education on numerous occasions, I have huge concerns over MM Childcare's ability to provide a safe & respected environment. When Ms Holloway initially raised the topic of child safety standards on 19th Jan 2018, she felt utterly bullied and harassed by Ms LL’s response, to the point she made a full report to the appropriate authorities because she was so concerned with MM Childcare's attitude towards reporting standards for the sake of all the other children in MM Childcare's care. On 9th April 2018, I had a similar experience with Ms LL and Mr TT, where l felt after several days of being stalked via phone calls & text messages, that they ganged up on me and forced a verbal confrontation when I came to pick-up Z - when all I was requesting was for everything discussed to be emailed in writing. These incidents, coupled with several more incidents over the past few months where I have evidence/ witnesses to prove MM Childcare have lied, manipulated or failed to report numerous behavioral [sic] concerns with Z, have all led me to no longer feel safe to collect Z alone at MM Childcare without a witness. Ms Holloway and Ms B have likewise expressed that they do not feel safe to pickup Z alone and without a witness, yet as an act of good faith for Z’s sake, they have agreed to do a final pickup this Wed 5th Sept- having each other there as witness in case history repeats itself, or you again try to make up false allegations like today.
ln accordance with point 3 of the court order; "all child changeovers are to occur at (a) childcare, or (c) as otherwise agreed". As MM Childcare is therefore no longer an option for changeovers moving forward, please be advised that it is the mother's responsibility to ensure that Z is made available by 5:30pm on all her future changeover days, at (c) the only agreed upon location to date - the W Police Station (commencing Mon 10th Sept 2018). Likewise, the mother will need to collect Z from her new kinder on all my future changeover days (commencing Fri 7th Sept 2018), to which I will be emailing through the details of the new kinder to the mother in a separate email tonight.
Lastly, could you please also provide me with a transition and learning development statement to date within the next 7 days, so that I am able to provide this to Z's new kinder, to help assist in her transition into school next year.
Regards,
Mr Holloway
In essence, the father unilaterally removed the chid from her childcare without regard to her best interests and to the mother’s wishes.
On 4 September 2018, the childcare centre notified DHHS as follows:
On 4 September 2018 MM Childcare childcare advised child protection that they had banned the father from the premises due to his persistent inappropriate behaviour and persistently asking childcare staff to report concerns to child protection, specifically behavioural changes following Z’s time in her mother’s care. The childcare did not hold concern for Z in the mother’s care and had not noticed any behavioural changes in Z.
Ms NN, a team manager at the Suburb PP DHHS who co-authored the s 69ZW report dated 25 February 2019, deposed as to this matter. She deposed that upon DHHS’ investigations of the father’s claims, Z’s childcare centre reported to DHHS that the centre was concerned that the father was making reports critical of the centre to the Department of Education and Training for failing to comply with the requirement of reporting child abuse. Ms NN confirmed that the childcare centre used the term that they felt the father was trying to get the centre to, “pin the mother for something”.[15]
[15] Transcript dated 24 November 2020, page 125 at lines 41-42.
The DHHS considered the father and stepmother were coaching Z to make allegations against the mother.
Additional to the father and Ms Holloway, Dr L made a number of reports to DHHS regarding her concerns surrounding Z’s safety and wellbeing. Such concerns arose out of the history provided by Ms Holloway; her mother, Ms B; and the father. On 22 October 2018, Dr L was asked by Ms NN of DHHS to provide information regarding Z’s care and safety whilst in her mother’s care. That information was provided on 23 October 2018. Dr L stated that she did not have any concerns after reviewing Z’s medical records, and did not note any concerns that the mother was not following through with any medical recommendations.[16]
[16] Transcript dated 24 November 2019, page 137 at lines 39-40.
Ultimately, the DHHS Child Protection found that the father and stepmother were responsible for harm to Z and assessed the father and stepmother as causing emotional harm to Z. The mother was not, and never has been assessed as responsible for harm to Z across all of the DHHS reports. Ms NN deposed that the DHHS investigation found that the mother acted appropriately and protectively of Z.[17]
[17] Transcript dated 24 November 2020, page 126 at lines 4-12.
On 22 October 2018, DHHS Child Protection had a case closure meeting with the father and Ms Holloway. Child Protection advised that they would not be substantiating harm to Z as caused by the mother. Further, that Z’s alleged sexual abuse disclosure, as perpetrated by the mother’s friend, Mr D, may have been as a result of “coaching by the father and stepmother.” Child Protection assessed the father and stepmother as responsible, “for emotional harm towards Z given that their behaviours have been of significant concern”. Child protection had interviewed Z, and Z had stated in that interview that the father and stepmother had told her to lie about the abuse in her mother’s care.
In December 2018, the mother sought that the father’s time with Z be supervised. She was finally in possession of the various factual matters described above which had proceeded over at least a year. What had occurred was a deliberate campaign on the part of the father and Ms Holloway to remove Z from her mother’s care.
On 27 April 2019, after orders were obtained in the FCC for supervision of the father and Ms Holloway’s time with Z, Ms Holloway told the supervisor then supervising the time spent with between Z and the father and she, that Ms Holloway wished to have the police again investigate the matter. She was highly critical of the mother as detailed in paragraph 90 hereafter.
On 26 September 2019, the father filed his case summary in this proceeding. His concerns about the mother, and Z being at risk in the mother’s care as discussed above, were repeated in that case summary at that time.
When asked by Counsel for the ICL at trial in October 2019, what her “greatest fear of risk for Z in her mum’s care” was, Ms Holloway responded, relevantly as follows:
She talks to, when she’s at home with, you know, the mother, she’s on the iPad watching movies all the time. There’s no reference of any kind of educational support or encouragement. Do you want me to continue?
Yes, please?
What was the question?
Your concerns, your risks that you identify in Ms Stanbrook’s household?
Okay. Medically, I don’t think – every time Z would come home with a red ear infection and it would be bright red like a fire truck according to Dr L, and Z wasn’t able to get a five day course of antibiotics and that went on for months of multiple people saying that she refused to give them, didn’t believe in them, didn’t think that she was sick enough and knowing that, I don’t think the judgement is there when a doctor is giving advice to follow something. I just question the continuity of care as well. There has been a number of times where there has been follow up appointments and she has not gone.
For [the mother]? Or sorry, that’s for Ms Stanbrook or for Z?
I’m talking about Z, not ‑ ‑ ‑
Okay. Yes?
Yes. But I believe through what I have been hearing through her own medical file, that there’s issues with that as well, but I don’t know what specifics are. But I know with Z that that’s a definite thing that there has not been the follow up on a number of occasions. The vaginal swab thing came back – severe bacterial infection. To me, you question why that’s happening. And, you know, the doctor is saying she needs to have adequate baths and then a couple of weeks ago Z says that she doesn’t have soap and shampoo and toothpaste in the house. And to me, that’s an adequate level of care that – why has she not got soap in the house? Why is there no level of, you know, shampoo or toothpaste or things like that? That’s another concern. The bruises, I – in the beginning Z was saying quite freely, “Mummy’s guys hit me last night. Mummy’s guys are hitting me again. I cried all night because mummy’s guys hit me.” I saw scratch marks. I saw a divot in the middle of her forehead of a scratch. I saw marks out of here – all these photos have been given to DHS. There was scratch marks under her thigh. There was a bruise about the size of a round – like a softball size on her ribcage, of which she told me she fell off a staircase. There were large, long bruises on her legs and it was a while that I kind of thought this was just rough and tumble and this is just she fell over on a bike type stuff. .[18]
[18] Transcript dated 2 October 2019, page 104 at lines 45-46; page 105 at lines 1-35.
In the giving of her further evidence, Ms Holloway maintained that there had not been a proper investigation of the matters of concern to the father and herself. She described Z as being “petrified to go home”[19] to her mother. She described a “huge level of fear”[20] in Z’s relationship with her mother, as experienced by Z. She described her own relationship with Z as good, a “special bond”.[21] She described Z’s relationship with her mother as “challenging, fearful”.[22] She claimed that Z had not only no toothpaste; no soap; and no shampoo available to her in her mother’s home, but that there was also no food available to her in the household of the mother. She accepted the truth of these matters, as allegedly stated by Z to her “100%” and could not be dissuaded from that firmly held view, as noted by Counsel for the ICL. When challenged by Counsel for the ICL as to her evidence that Z presented at supervised time spent with as always hungry, Ms Holloway maintained her position. The supervisor’s notes indicated that there was an occasion where the father asked Z if she had eaten breakfast. Z replied, “I haven’t had one thing to eat.”[23] Ms Holloway said, “but you have been awake for hours.”[24] Z replied that she was “not hungry, but was hungry now.”[25] A further occasion was described by the supervisor wherein Z asked her father and Ms Holloway whether she could eat. Z was told that she would say grace and then have lunch. The time was around 1pm and it was not surprising that Z desired to eat lunch. In reality there was nothing to support the claims of Ms Holloway.
[19] Transcript dated 3 October 2019, page 8 at line 13.
[20] Ibid, page 8 at lines 14-15.
[21] Ibid, page 13 at line 17.
[22] Ibid, page 13 at line 19.
[23] Ibid, page 16 at lines 16-17.
[24] Ibid.
[25] Ibid at line 18.
Ms Holloway said as to the evidence of the husband’s sister that such evidence was impliedly unreliable because the husband’s sister was, “heavily biased and best friends with [the mother]”.[26] The evidence of the husband’s sister, Ms G, which is accepted by the Court, included that she sees Z regularly with her mother, and that Z appears well cared for by her mother, and is happy and social in their times together.
[26] Ibid., page 15 at line 11.
Ms Holloway was of the view that the Court should make an order for a further investigation to be undertaken to assess the communication between the mother and Z. She desired that investigation to include the “unbelievable fear”[27] that Z exhibited when having to leave their home and care, and be returned to her mother’s home and care. She wished the further investigation to deal with what she claimed were the risks to Z in the mother’s care. These included emotional harm, physical harm, and sexual abuse risk.
[27] Transcript dated 3 October 2019, page 17 at line 45.
In her evidence Ms Holloway described Ms H’s (the family report writer’s) evidence as essentially unreliable because in her opinion, Ms H was “incredibly biased.”[28] Ms Holloway considered that Z is not living in a safe, happy and stable environment and claimed she was living a life all “lies and games.”[29] She added two further complaints. These were that Z, “sleeps over[at] other people’s houses every single time we get there. She has been sick for … six months solid.”[30]
[28] Transcript dated 3 October 2019, page 63 at line 32.
[29] Ibid page 84 at line 36.
[30] Transcript dated 2 October 2019, page 85 at line 12-14.
Ms Holloway significantly lacked insight into what would promote the best interests of Z. Her evidence was not credible. Her views worryingly entrenched. The father will need to act protectively of Z in any engagement between Ms Holloway and Z, and it is in Z’s best interests that not occur unsupervised by the father for a further period of time to ensure the father is able to put in place the necessary mechanisms to protect Z.
Q Services (supervised contact centre)
Ms P is the service manager of Q Services. She employed Ms K and Ms QQ as supervisors (at differing periods of time) of the contact between the father and Z, which contact occurred mostly also in the presence of Ms Holloway. Ms P herself personally supervised two occasions of supervised time on 7 and 14 September 2019.
Face-to-face time had to cease as a result of COVID-19 in about March 2020. Thereafter, Ms P offered the family, and all other families, with whom the services were involved, internet Zoom time between a parent and a child for 30 minutes each week. The father replied to this offer that he required four hours a week of internet time, for the same price. Additionally, and despite the father being reassured that the supervisor facilitating the call would ensure the absence of the mother during the call, the father insisted on the child being out of the home. It was not an issue for him to have Z removed to the driveway, for the purpose of having contact with him. His demands for an extended period of time, at the same cost and for the child to be out of the home were not met by Q Services. In those circumstances, the father declined the services that were offered. On or about 1 June 2020, Ms P wrote to the parties suggesting a resumption of face-to-face time. She advised that Ms K was no longer working for her, but that another supervisor would be available. The proposal put forward by Q Services was not one which was acceptable to the father. The father then sought to further engage with Q Services requesting of them to provide him with information about their policies and practices in written form. This was too time-consuming for Q Services to respond to, and was work without payment, in particular, when matters going to their policies and practices were on their website. At the time, Q Services were struggling with a raft of time-consuming responsibilities including the need to meet government requirements for supervision arising from the advent of COVID-19, such as deep cleaning the premises they were using.
The father’s cross-examination of Ms P went significantly to her processes. What became apparent was that the father sought information to be provided to him, including supervision notes, at no expense. He was demanding of the time of Q Services outside his periods of supervised time, and these demands were difficult to meet by a small business. Importantly, the father was not concerned about promoting his relationship with his daughter. His priority was gaining information to attack Q Services.
As to Ms P’s own observations of supervised time, she observed Z to have a close relationship with each of her father and Ms Holloway and it was clear that Z loved them. She expressed concerns however about the interactions between the child and her father and stepmother. On one occasion, under Ms P’s supervision, the father and Ms Holloway took Z to an obstacle course that Ms P thought, “very high and frightening for a five-year-old”. Ms P observed Z to be terrified. She conveyed her concerns to the father and Ms Holloway. Ms Holloway was dismissive as to those concerns. Z undertook the obstacle course, and Ms P observed the child to trust her father to help and to keep her safe. On another occasion, when Ms Holloway was absent, Ms P observed the father to attend with a video prepared by Ms Holloway. The father insisted on Z watching the video before she underwent any activities. Z was then required to write a thank you letter to Ms Holloway. On the next supervised visit, there was a further video as prepared by Ms Holloway, which again, Z was required to watch before engaging in activities with her father. In that video, Ms Holloway was in the child’s bedroom at the home of the father and Ms Holloway. Z could observe the cat on her bed. The video did, as it was meant to, emphasise for Z that she was missing out on those times that she had enjoyed in the home of her father and Ms Holloway. Ms P wondered how that could have been of benefit to Z.
Ms K supervised subsequent visits. Ms K was ultimately dismissed from her employment by Ms P for, amongst other reasons, preparing an affidavit in this proceeding with an accompanying report that she did not disclose to Ms P, until after the event. Ms P’s concern was that any report prepared, should be a truthful record of observations made in supervised settings. Ms P’s evidence was that Ms K’s report did not appear, in its content, to be from her. Further, Ms K expressed no concerns as to the interaction between the father and Z and Ms Holloway during periods of supervised time. This was despite Ms K expressing to Ms P some significant concerns at an earlier point in time. In January 2020, after eighteen supervised sessions, Ms K had written to Ms P, relevantly, the following:
Yes, there were lots of pictures with dad and Z. Mr Holloway is a weak man. He has been manipulated by both Ms Holloway and her mother who seem to run the show. Dad is very good with Z as are Ms Holloway and her mother, but the underlying actions are counter-productive.… Ms Holloway seems to think there is a hidden agenda in everything that Mum says or does. Clearly, these two ladies will never co-parent peacefully.…
It’s silly. All parties are great with Z individually but it seems there has to be a competition. The actual mother is less combative and does not enter into the game. Even if Z has a sleepover at one of her friends, there is a comment from Ms Holloway usually but now and again dad .… There is no doubt Z loves dad, Ms Holloway and Ms B [sic] and if only they were all just happy enough knowing that Z is well cared for by her mum which I think dad should be happy about.…
Ms K supervised sessions of four hours duration each Saturday. Her involvement with the family began on 5 October 2018. She supervised in total 29 sessions, the last occurring in March 2019. She noted that she spent over 100 hours of time with Z and her family.[31] Supervised time with Z was primarily attended by Mr and Ms Holloway, but at times also included Ms Holloway’s mother, Ms B, as well as some of Z’s friends from kindergarten and their parents. Ms K noted that Z presented as, “happy and confident” in the company of all who attended her supervised time, and that she had no concerns about any of the adults that Z was exposed to.[32] She stated that, “There seems to be a positive strong family bond.”[33]
[31] Affidavit of Ms K sworn 23 April 2020 at page 5 of 7.
[32] Ibid.
[33] Ibid.
In her evidence before the Court as set out in her affidavit sworn 23 April 2020, Ms K described Z as a loved child and her father and Ms Holloway as good parents. She said of the mother little, but in cross-examination by Counsel for the ICL, she acknowledged that the mother was always pleasant, and that she did not have any issues with the mother. Further, that the mother had been supportive of Z’s relationship with her father. Ms K made no reference in her affidavit evidence to those matters that had concerned her in January 2019. The credibility of her evidence suffered by that omission.
Ms QQ, a manager for Q Services, became the appointed supervisor for Q Services after the departure of Ms K. Ms QQ noted that she was a former protective worker in the Department of Health and Human Services. Ms QQ supervised time spent between Z and her father and Ms Holloway (where she was present) on 19 occasions ending in July 2019.
On 20 July 2019, Ms QQ determined that she did not wish to be a supervisor for the family thereafter. She said as to her decision, in cross-examination:
I felt that my professional integrity was being challenged, and I felt that Mr Holloway and Ms Holloway were using me as a mechanism or a pawn, I suppose, to get information, and they were challenging my observations, which were completely impartial and contemporaneous. I take notes as I am at a visit.…They were questioning and challenging what I had said, the notifications I had made (to the Department). So, the contact is really specifically in relation to trying to contain the situation, because it was so difficult to do so. And if – if family contact service was to remain involved, then there were conditions around that, and it was around not probing the child, and it was around things like Ms Holloway not being part of the – part of the few visits up until Court. Because she was the one that actually was the instigator in a lot of this…
Ms QQ’s evidence is as set out in a detailed report prepared by her, as annexed to her affidavit of 8 August 2019. I accept the contents of her evidence. Her observation was that the father lacked insight into why it was that he was the parent that required supervision. She observed that the father and Ms Holloway held such entrenched negative views of the mother, that it would not be possible for the mother and father to successfully co-parent. She considered that in the father and Ms Holloway questioning of Z there was, “always that subtle innuendo and subtle coaching” which Ms QQ considered of significant concern. She concluded that they were attempting to gather information about the mother and to use it to promote their own agenda. Further, in Ms QQ’s view, because the father and Ms Holloway held the negative beliefs they did about the mother, they subjected Z to a form of emotional abuse.
Ms QQ was also aware of the father and Ms Holloway attempts to involve Ms QQ herself, in an investigative role in respect of the mother and the complaints made by them against her. Mr and Ms Holloway spoke to Ms QQ of their multiple concerns that the mother was not protecting the child; was associating with people of concern; and that she was often intoxicated and had mental health and drug and alcohol issues. Ms Holloway further stated to Ms QQ that, “[The mother] basically allowed Z to get raped” and “that[the mother] is manipulative, dishonest and plays the victim.” Ms QQ did not consider her role to be that of a police officer. She did make two reports to child protection in respect of Z which she considered a necessary obligation of a person in her position. One was on 22 June 2019, after sighting a mark on Z’s left buttock after a shower following swimming. The second was in relation to a comment made to her by Z, that the child was not in a booster seat in her mother’s care. Both these notifications were closed at intake.
Ms QQ noted that in respect of the “initial changeover” on 27 April 2019, the mother had requested of a worker at the contact centre that there be a nominated, and regular, changeover location each week, in lieu of driving to various locations as desired by the father and Ms Holloway. The mother had noted that in the past the parents had used McDonalds in Suburb E as their meeting place, which was a location Z was familiar with. The mother proposed this changeover location would be ideal to maintain some consistency for Z.[34] The mother also noted to the worker at the contact centre, that she was in between jobs and would be struggling financially for a few days, which impeded her ability to travel long distances by car and pay for petrol. When Ms QQ rang the father to discuss the mother’s request to nominate a regular changeover venue, she noted (at page 35 of her observational report) that the father’s response was that the mother’s refusal to drive was to cover up her substance abuse issues, and that the worker needed to, “pay more attention” to the mother’s presentation at changeover. He also offered to pay for the mother’s petrol to travel to a changeover location chosen by him saying that he was, “worried that if the mother couldn’t afford the petrol then he questioned what else she couldn’t afford”.[35] Given the parties’ dispute over changeover locations, Ms QQ was forced to appoint McDonalds Suburb E, agreeing that nominating a regular changeover location offered consistency, predictability and alleviated any stress and anxiety for the mother.
[34] Affidavit of Ms QQ sworn 8 August 2019, observational report at page 33.
[35] Ibid at page 34.
Ms QQ wrote in her report at page 57, that Ms Holloway informed her about Ms Holloway pursuit of reopening the police investigation in order to ,“take matters into her own hands so that JJ was served”.[36]
[36] Ibid at page 57.
Ms QQ otherwise stated in her report that Mr and Ms Holloway had been, “interpersonal, upfront and respectful in all communications and dealing with the writer” and that “Z’s physical safety” was ensured in their presence.[37] Ms QQ stated that Ms Stanbrook was: “always polite, courteous and there have not been significant concerns regarding her presentation. The writer observed Ms Stanbrook as being non-substance affected and functional in her presentation. There have been instances where Ms Stanbrook has presented as anxious and stressed resulting from the court process and her current situation.”[38]
[37] Ibid at page 65.
[38] Ibid at page 65.
Each of the supervisors involved in the supervision of time spent with between Z and her father and stepmother gave evidence that Z mostly enjoyed her time with her father and Ms Holloway. The mother did not challenge that observation and was genuinely happy for Z that time progressed in that manner. Of concern to the mother however, were the reported subtle negative comments about the mother made by Ms Holloway during time spent with periods, and the psychological harm caused to Z in that approach.
Ms H (family report writer, psychologist and single expert witness)
Ms H prepared a family report, which was before the Court in evidence and is dated 26February 2019. Ms H observed the mother presented as approachable, with appropriate emotional response throughout the interview. The mother appeared primarily concerned as to the impact upon Z psychologically, of the ongoing parental conflict. Ms H observed the father also presented as approachable, although she noted he was verbose at times, and fixated in his views throughout the interview. She further noted that the father’s narrative was entirely negative about the mother throughout the assessment and that he viewed himself as the superior parent. Ms H also interviewed the father’s wife, Ms Holloway. Upon their marriage, the father ceased using his own surname and took the surname of his wife. Ms H observed Ms Holloway to present as approachable at interview, but noted, “she appears entirely aligned or supportive of her husband and very invested in the parental dispute, thus, the capacity to provide impartial collateral information is likely limited.”[39]
[39] Family Report by Ms H dated 26 February 2019 at paragraph 29.
Ms H made observations of Z with each of her parents and with Ms Holloway during her interview conducted for the purposes of the report. Z was brought to the assessment with the family report writer by her paternal grandparents. They have maintained a relationship with Z which is fostered by the mother. The father is estranged from his parents. Ms H noted there was evidence, “of a secure positive relationship” with both grandparents. Ms H observed Z to interact with her mother in a calm and natural manner, with evidence of physical affection initiated. Likewise, Ms H observed Z to interact well with her father and stepmother, there being, “fun and enthusiasm between them, with laughter and physical affection”[40] between Z and her father and her stepmother. They were observed to be “warm, nurturing, and affectionate to Z”[41], with Z appearing “calm, interested, and confident in her communication”[42] with her father and stepmother.
[40] Family Report by Ms H dated 26 February 2021, page 25 at paragraph 94.
[41] Ibid at paragraph 95.
[42] Ibid.
Ms H set out in paragraph 21 of her report, that the mother acknowledged Z loved her father and stepmother. She believed however that Z was not old enough to self-protect. The mother described the father as harassing and intimidating of her through his use, in high-volume, of electronic communication directed to her, and to services such as the childcare used by the child, and DHHS. The mother expressed a fear that the father would not relent in his pursuit, and that his behaviour may indeed escalate, should there be adverse findings made by the Court against him. The mother was worried about the safety of herself and Z.
The father stated his belief, at that time in the history of the proceeding, that a shared care arrangement or shared parental responsibility would, “be likely untenable”. The father stated that he would have, “grave concerns for Z’s welfare”[43] should the mother have sole parental responsibility or should the child remain living primarily with the mother. The father expressed his belief that he was better able to manage Z’s health and educational needs, and that he, unlike the mother, would be able to protect Z, the father believing, “100%” that Z had been sexually abused by the mother’s friend, Mr D.[44]
[43] Family Report by Ms H dated 26 February 2019 at paragraph 24.
[44] Ibid at paragraph 25.
During her interview with the father, Ms H noted that the father “lacked insight into the likely difficulty for Z transitioning between two opposing parents, and instead presents as entirely blaming of the mother for any issues or behaviour difficulties in the child”.[45] Further, that the father:
…lacked reflective capacity regarding his own contribution to the ongoing dispute. Instead he made excuses for unilateral decisions (such as Z’s childcare enrolment), and he believes his actions have always been child focused. He places blame solely on Ms Stanbrook for the entirety of the difficulties.[46]
[45] Ibid at paragraph 26.
[46] Ibid at paragraph 28.
Ms H observed there to be no congenial relationship for shared decision-making between the parties, and that they appeared to be parenting Z separately to one another. She noted that conflict between the parties would likely continue given their inability to amicably co-parent, and due to the entrance animosity between them, she noted the parents inability to reach agreements was likely to disadvantage Z and “place her at increased risk of exposure to the adult conflict.”
Ms H noted in her clinical evaluation of the mother that: “her strengths outweigh the relevant needs, and she presents as low risk in regard to any major effect of her current functioning on her parenting.” Thus, it was her view the likelihood of Z being exposed to neglect or abuse in her mother’s care appeared somewhat limited.
At paragraph 71 of her report, Ms H noted in her clinical evaluation of the father that:
…his identified needs outweigh his strengths, and he presents as moderate to high parental risk. The areas identified as potential deficits include his relationships and communication with others which is problematic and appears unrelenting. He lacks insight into the impact of his behaviour on others and he appears empowered by his wife who also lacks reflective capacity about Mr Holloway’s behaviour. There is concern regarding the fixated nature of his beliefs and the likely influence of Z to submit to these beliefs. This will inevitably create a rift for Z in her relationship between her parents.
In her consideration of the allegations of sexual abuse of Z, as allegedly reported by Z to her father, and then as immediately reported by the father and his wife to police, Ms H sent out the allegations made by each of the parties. She said:
51.Mr Holloway claimed whilst shopping with Z, she told him; "What would you do if I licked my finger and put it in my bum?" He acknowledged recording the rest of his conversation with her, in which he asserts Z alleges sexual abuse by Mr D. He questioned Z further, although the extent to which is unclear, and the Court will benefit from the recordings made by Mr Holloway. He claimed that when at home Z made further disclosures to her step-mother and they called police for advice. Upon this advice, they made a formal statement that night, with Z being interviewed by Police on two separate occasions.
52.When describing her initial disclosure, Mr Holloway deduced that Z was referring to an event that supposedly occurred at HH Location, where she had been with her mother on the weekend in question. Mr Holloway claimed that she said her mother had left her alone with Mr D, and he had come up from behind and stuck his finger in her bottom, which Mr Holloway presumes included digital penetration. He said that Z told him she felt "sad and yucky" and like she had "died inside." This statement is emotionally articulate for a 4-year-old. He also believes there was inference to Z possibly being medicated. Similarly, Ms Holloway claimed at interview that Z said, Mr D "stuck his finger in her bum, in and out."
53.The father asked Z if that was the first incident and she reportedly replied "No." He believes there was another assault when camping with her mother earlier in 2018, although Ms Stanbrook emphatically denies Mr D was ever alone with Z on that occasion. Mr Holloway believes Ms Stanbrook is attempting to cover for her friend by denying the abuse.
54.Mr Holloway claimed that Z's behaviour had first changed around March 2018 and he and his wife suspected something was amiss during the child's time with her mother. He claims the kinder teacher on 21/3/2018 informed him Z was "not behaving as normally" and was hiding under tables. Similarly, Ms Holloway also claimed that Z requested not to be sent back to her mother and that she would hide at childcare upon being collected by Ms Stanbrook. Ms Holloway stated that a parent at childcare had told her Z behaves differently on days she is due to go with each parent. Although no such concerns were corroborated through the childcare file on subpoena.
55.According to Z's step-mother, in April 2018 Z had woken one-night screaming that there was a "monster touching her body." She said Z had been camping with her mother prior to this incident, and thus the father and step-mother both believe the abuse was occurring for a period of time before the initial disclosure by Z.
56.During assessment, Mr Holloway was denigrating of Ms Stanbrook's associates, suggesting if the abuse did not occur by Mr D, then it could have been another of her friends. Ms Holloway believes the mother and paternal family members have also attempted to have Z recant her claims, by telling her she was lying.
57.From the mother's perspective, Mr Holloway has fabricated the allegations. She believes that he does not like or respect her as a parent and that he is attempting to gain parental control and primary care of Z. In this respect, she believes that the allegation was premeditated, and that Mr Holloway and/or his partner have successfully attempted to influence Z. Ms Stanbrook raised concern that the allegations of risk and abuse made by Mr Holloway have escalated over time, and that she has been told by police to keep a diary of events and information, due to Mr Holloway's increasing claims. She believed the evolving nature of the supposed abuse, provides evidence from her perspective that they are false.
58.Ms Stanbrook claimed the accusations by the father have impacted Mr D and his family significantly, who have been both angry and upset by the claims against him. He reportedly denies any form of abuse toward Z, and Ms Stanbrook appears supportive of his denial. Mr D has not been interviewed by police or DHHS, or for the purpose of this assessment. It is unclear at this point in time whether Mr D plans to contest the IVO against him on behalf of Z, due to associated legal costs to Mr D.
59.Ms Stanbrook makes counter claims of possible "grooming" by Mr Holloway, given behaviour and information allegedly divulged by Z. She claimed Z has asked her to smell her finger, and after eventually relenting, the mother smelt faeces on Z's finger. She lectured Z about not putting her finger in her bottom after the child acknowledged having done so. She claimed Z had said, "My daddy showed me, on himself. We did it together." She also said she has found Z in "unusual" or provocative positions on the couch, and Z has asked Ms Stanbrook if she wanted to take pictures of her genitals, claiming that her father and step-mother had done so, which has unnerved Ms Stanbrook. Whilst Ms Stanbrook is not raising allegations of sexual abuse in the father's household, she believes there has been grooming behaviour, possibly in regard to the allegations against Mr D or Ms Stanbrook.
60.Since the allegations of abuse, both parties have noted a decline in the child's behaviour and increased reservedness or secrecy. Ms Holloway also noted declined sleep and Z wetting her bed at night.
61.It is also noteworthy that Z has a reported history of vaginal bacterial infections (thrush), confirmed in subpoenaed medical records as a vulvovaginal infection. Ms Stanbrook said that she also has a history of the same condition, which is also referenced in the collateral medical files. However, Mr Holloway now queries whether such issues have resulted from or been exacerbated by any supposed sexual abuse. There are also competing claims whether the mother has adequately attended to this medical issue for Z, with opposing views by each parent. Z's vaginal health is likely to be an ongoing point of contention between the parents in future, and one that may cause ongoing conflict and/or speculation. Any recurring vaginal health issues are likely at this point in time to elevate the risk of further abuse claims made by the father.
In paragraph 85 of her report, Ms H noted that Z stated to her: “daddy says she (the mother) likes to hit but she doesn’t”[47]; “daddy doesn’t like [Mummy …]”[48]. Ms H noted that although Z was of the impression that her mother liked her father, Z also was of the impression that, “daddy doesn’t like tattoos or smokes, and daddy thinks she (the mother) lies but she doesn’t”[49].
[47] Ibid at paragraph 85.
[48] Ibid.
[49] Ibid at paragraph 85.
Ms H also made reference in her report to the documents viewed by her from MM Childcare in the context of the father’s and Ms Holloway’s interaction with the childcare centre. She noted relevantly, as follows in her evidence:
104.The MM Childcare file on subpoena is extensive, and outlines communication from the parents and Ms Holloway to childcare staff, including concerns from staff around intimidation and perceived harassment from Mr and Ms Holloway. The exchange of communication from both Mr and Ms Holloway appears fixated on several points of contention such as their concern the mother has not adequately provided Z's antibiotics, issues around childcare gifts, and staff communication. The communication from the father and his wife presents as both passive aggressive and accusatory.
105.The only evidence associated with the antibiotic debate appears an inference that Ms Stanbrook had collected Z prior to the next required dosage on one occasion. There is no evidence within the childcare file, other than speculation from the father that indicates the mother or childcare has been medically negligent in any way.
106.There is inference from both parents having expressed their views of the other to childcare staff. In particular, there is a multitude of documents outlining Mr and Ms Holloway’s views/concerns about the mother. In this regard they appear to have attempted to inappropriately draw the childcare into the parenting dispute.
Ms H was clear that shared care, in any scenario, “would not work” and she did not support the father’s final orders as sought at trial for a week about living arrangement for Z. Her view at trial remained consistent, Ms H having earlier said in her report at paragraph 121.
… Shared care is not an option for Z currently without exposing her to further emotional confusion, instability and psychological harm due to the parties’ inability to collaborate, communicate or compromise. She will require one primary household to better establish a secure connection and sense of sanctuary both physically and emotionally.
In her concluding remarks, Ms H highlighted the problematic behaviours of the father and to some extent his wife. She noted it was possible, in the absence of evidence associated with his accusations, that the father would continue to pursue his views against the mother. Her assessment indicated that the father and his wife had a tendency to become fixated on their own views and beliefs, and were likely to remain rigid and uncompromising in these views. She considered when others, opposing these views, provided contrary information, such as in the instance of MM Childcare, the father and his wife became defensive, causing the severance of working relationships with others.[50] Additionally, the communication style of the father as observed by Ms H appeared rigid and self-focused. Ms H said:
The relentless scrutiny and pursuit by Mr Holloway and his wife is intimidating to others and creates a culture of unease, mistrust and anxiety. While it is unclear whether the intended goal is control, the behaviour exhibited by them is certainly controlling in nature.[51]
[50] Family Report by Ms H dated 26 February 2019 at paragraph 124.
[51] Ibid at paragraph 125.
Ms H recommended parental responsibility should reside in one parent, that parent being the mother. She further recommended that on an interim basis, Z remain living with the mother. She proposed supervised time between Z and her father in the event the Court found adequate evidence of coaching and/or manipulation by either the father and/or the stepmother, and in the absence of paternal risk, there be a consideration of Z spending two nights each week with her father.
Ms H noted both parents believed the other posed an ongoing risk to Z. She noted, the several reports made to DHHS by the father outlining his various concerns for the child. She noted that Dr L had also reported her concerns to DHHS as provided in the history given to her by the father, Ms Holloway, and Ms Holloway’s mother. Ms H noted further that none of these claims had been substantiated. Ms H noted the mother’s claim that Z was in a “vulnerable position” psychologically, as a consequence of the father’s ongoing influence and manipulation of her, together with Ms Holloway ongoing influence, manipulation and coaching behaviour as also engaged in by the father, causing emotional harm to Z. Ms H concluded that the parents could not agree on the child’s medical care and that it would be important for Z’s medical care to be entrusted to one general practitioner.
Ms O (consultant forensic psychologist)
Ms O is a consultant forensic psychologist who prepared a mental health and parenting capacity assessment psychological report of the father dated 10 July 2019, and of the mother dated the 12 July 2019.
Ms O conducted a clinical interview with the father on 5 June 2019 for nearly three hours and completed the following tests:
(a) Aggression questionnaire;
(b) Axis II personality checklist;
(c) Child abuse potential inventory;
(d) Minnesota multiphasic personality inventory-2 (“the MMPI-2”);
(e) NEO personality inventory-3;
(f) Parent-child relationship inventory; and
(g) Paul Hurst deception scale.
Additionally, the father took some tests home to complete them and return them to Ms O. Those tests were:
(a) fear of negative evaluation;
(b) fear of intimacy;
(c) relationship questionnaire; and
(d) social avoidance and distress scale.
The MMPI-2 was considered to be valid. The pattern of the father’s responses suggested he is somewhat suspicious and evasive about answering questions regarding himself, which was consistent with his presentation throughout the interview. Ms O said, “his guarded and secretive approach to the test suggest that he may be covering up unusual thoughts, however this is not to a level suggestive of the presence of psychopathology.”
Likewise, the administration of the NEO personality inventory-3 was considered valid. Consistent with the results of the MMPI-2, the pattern of responses suggested that the can present with excessive emotional control and likely tends to over suppress feelings of anger. That was not to suggest however that he had a problem with anger.
The other tests undertaken by the father showed no evidence of the presence of features consistent with a personality disorder, pervasive anger management difficulties or other psychopathology.
Ms O concluded that the father did not present with any mental health issues that would undermine his capacity to parent Z. He presented with the capacity to respond to her needs when in his care. The father presented with psychological stability and resilience generally, however the ongoing frustrations he experienced in dealing with his ex-wife remained an ongoing agitation. He had not been as proactive in prioritising the needs of Z over his own needs. That was not to suggest the father had been neglectful or dismissive, rather that he did not consider his behaviour to contribute to the ongoing conflict. Ms O noted the father would benefit from participating in counselling to assist in the development of skills to respond to the frustrations he would experience in the future in his dealings with his ex-wife.
Ms O conducted the same tests on the mother. Upon her assessment of the mother, Ms O concluded that the mother had functioning psychological and emotional health and that she had the capacity to parent Z and act protectively. Ms O suggested that the mother would benefit from participating and counselling to, “assist in developing her communication skills and developing a meaningful pathway to co-parenting Z regardless of what the pathway is.”[52] Ms O stated that the parental discord between the mother and the father had, “become a focus to prove him wrong” and “her own style of communication likely has contributed to maintaining the disharmony between them.”[53]
[52] Affidavit of Ms O sworn 1 August 2019 at page 19 of 21.
[53] Ibid.
Ms O found no evidence of specific issues identified in either of the father’s or mother’s psychological profiles to suggest that either was at risk of exposing Z to harm either cognitively, emotionally, or behaviourally.
Mr J (psychologist and father’s counsellor)
Mr J is a consultant psychologist who is engaged with the father and stepmother in therapeutic counselling to them. He prepared a psychological report of Mr Holloway and Ms Holloway. That report was in evidence and dated 5 October 2020. Mr J had before him the family report of Ms H; the psychological reports of the father and mother as prepared by Ms O; the report by Q Services; and the report by RR Services. In his report, Mr J stated that in his opinion neither the father nor his wife had coached Z, and that they clearly had a positive and supportive relationship with Z. He of course did not interview Z, nor observe Z with her father and stepmother.
In Mr J’s view, the father and stepmother would not place the child at risk as they were both focused on her welfare. It was his belief that Z had been, and will be, negatively impacted in not having regular contact with her father and her stepmother and he concluded his report with the following: “I see no reason why 50/50 care should not be reinstated immediately.” Mr J was in no position to express such a conclusive view.
Mr J has never interviewed or assessed the mother or the child. He was not the family report writer in the proceeding. His remarks about the child’s handwriting and spelling were gratuitous, “Mr and Ms Holloway have shown me the evidence of Z’s cards, in my opinion the spelling and handwriting appears to have regressed.”
Mr J accepted in cross-examination, that he had not been provided by the father, with contextual and important information as to why it was that the father had not seen Z since March 2020, and thus missed spending some time with the father on her birthday and on Father’s Day in 2020, that being a matter of concern to Mr J. That information was the father's refusal to adapt to the COVID-19 restrictions and engage in a more limited supervised time with Z. This resulted in eight to nine months of no time spent between Z and her father. Mr J acknowledged that his assessment would be limited by this new information.
Ms G (the paternal Aunt)
Ms G is the eldest of five siblings including the father. She gave evidence on behalf of the mother. Following separation, she made clear to the parties, her intention to be supportive to both in their parenting of Z. The father was not happy with his sister’s support for the mother. The sibling relationship became difficult and since 2016 has been poor, and mostly non-existent. The father does not to share any information about himself with any of his family members. Ms G does not know where he lives. The father has isolated himself from his family, declining invitations that have been extended to him and/or to his wife. In October 2016, the father demanded of his family that they delete the mother from Facebook and cease all contact with her, or he would “de friend” the family.[54] Three days later, the father deleted Ms G and his mother from Facebook and thereafter his family and his extended family.[55]
[54] Affidavit of Ms G sworn on 16 August 2019 at paragraph [17].
[55] Ibid.
On the 5th of December 2016, Ms G invited both the mother and Z to her son’s birthday party. On the 20th of December 2016, the father sent a message to his mother stating that, on legal advice, he may pursue criminal action against the family and that he would let them know if he decided to go to the police.[56] It was Ms G’s evidence that the father was trying to frighten the family in circumstances where the family had tried contacting him to invite him for Christmas dinner. Ms G’s evidence was further that the father, “has been cruel and nasty in the way that he talks about [the mother] both publicly and privately.”[57]
[56] Ibid at paragraph [20].
[57] Ibid [24].
Additional considerations
Pursuant to s 60CC(3) of the Act, additional considerations are required to be considered by the Court, as far as they are relevant to this proceeding. They are considered in the totality of these reasons. I add the following below.
Z loves her father and her mother. She also loves Ms Holloway. There is no challenge made by the mother to that fact. Z wishes to spend time with her mother, her father and Ms Holloway. Her age and level of maturity is such however, that these views are given little weight save the Court is mindful that the mother and the ICL acknowledge that if Z’s wishes can be accommodated without risk, they should be.
Z has a well-established relationship with each of her mother, her father and Ms Holloway. Each of her parents can provide for her physical, intellectual and financial needs. Her mother can provide in far greater measure for her emotional needs. Indeed, the issue in this proceeding is primarily what risk of emotional harm might Z be exposed to in her father’s care.
The mother’s understanding of the responsibilities of parenthood considerably outweigh the father’s. It is she who has promoted Z’s relationship with the father. The father has actively sought to undermine and destroy Z’s relationship with her mother. Both he and Ms Holloway engaged in a campaign to falsely discredit the mother. The lengths to which they went were planned and extraordinary. They showed no regard for Z’s wellbeing nor the importance to her of the presence of her mother in her life. Despite all this, the mother continues to promote Z’s best interests by supporting her relationship with her father for so long as that relationship does not present a risk of emotional harm to Z. The father and Ms Holloway have attempted some self-reflection in their attendance upon Mr J. They have much to offer Z if they accept the primary presence of her mother in her life and support that relationship. They shall be given an opportunity as that promotes Z’s best interests, but there needs to be a slow re-engagement with Z. The mother shall have an ability to return to Court in a timely way if further difficulties arise that would require a revisiting of these orders.
CONCLUSION
Considering the clear mistrust between the parents and the parties’ assessed inability to collaborate, communicate and compromise, I am cautious with respect to extending time-spent arrangements for Z. However, Z is older now with greater ability to self-protect. Her father is an important figure in her life and the benefit to her of a meaningful relationship with him is obvious so long as history is not repeated. It should not be. Ms Holloway is a part of the father’s household and is a person to whom Z has a significant attachment. Her attendance and that of the father upon Mr J shows some limited insight. For Z there needs to be an advancement to a more normal situation with both the father and Ms Holloway absent their previous destructive behaviours. The orders the Court shall make address that balance to promote Z’s best interests.
Finally, the orders as sought by the mother and the ICL as to the mother’s travel with Z were not particularly challenged or addressed by the father. There is no prospect of the mother removing the child from the jurisdiction. Both the mother and the ICL sought the orders in circumstances where they sought to avoid a return to Court in the context of the father’s oppositional stance in many areas. The reality is that the mother is unlikely to be able to financially afford such travel. However, it would be an opportunity, if it did arise, that would advance Z’s best interests, being a significant holiday with her mother, a thing for her to treasure.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 13 August 2021
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