STROUD & REES

[2014] FamCA 754

FAMILY COURT OF AUSTRALIA

STROUD & REES [2014] FamCA 754

FAMILY LAW – CHILDREN – Sexual abuse allegations made against father consistently denied – No corroboration – Serious concern expressed about mother’s actions – Question of which parent can provide better stability and security – No unacceptable risk with the father but serious concerns about the mother – Difficulty of separating the child from half-siblings – Best interests to change child’s residence.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

A v A (1998) FLC 92-800
B v B (Access) (1986) FLC 91-758
Chappell and Chappell [2008] Fam CAFC 143
Donaghey & Donaghey [2011] FamCA 13
Jones v Dunkel (1959) 101 CLR 298
Fitzpatrick & Fitzpatrick (2005) FLC 93-227; (2005) FLC 93-227
Hardie & Capris [2010] FamCA 1046
Leveque v Leveque (1983) 54 BCLR 164
M v M (1998) 166 CLR 69
Marriage of M (1987) 11 Fam LR 765,
Moose and Moose [2008] FamCAFC 108
Rice and Asplund (1979) FLC 90-725

Australian Journal of Family Law (2006) 20, 249

APPLICANT: Mr Stroud

RESPONDENT: Ms Rees

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11270 of 2011

DATE DELIVERED: 11 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26, 27, 28 & 29 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Testart

SOLICITOR FOR THE APPLICANT: The Law Office

COUNSEL FOR THE RESPONDENT: Mr Lowy

SOLICITOR FOR THE RESPONDENT: Sofra Solicitors Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park

Orders

1. That all extant parenting orders are discharged.

2. That the father have sole parental responsibility for the child Z (“the child”) born … 2009.

3. That prior to making major long-term decisions concerning the child, the father shall notify the mother of his proposal and give her 14 days (unless it is otherwise impossible to do so) to consider his views and within 7 days thereafter, the mother reply by the same electronic means indicating her views whereupon the father shall make the determination and advise the mother accordingly.

4. That the child live with the father as and from 6.00pm on Friday 12 September 2014.

5. That the child spend time with and communicate with the mother as follows:

   (a)During each alternate weekend from 5.00pm on Friday until 9.00am on the following Monday or such other times as the parties agree commencing on 19 September 2014;

   (b)Once the child commences primary school, for the first half of the school term and long summer holidays in even numbered years and the second half of the term and long summer holidays in odd numbered years;

   (c)On Mother’s Day from 5.00pm on the Saturday evening prior to Mother’s Day until the start of school on the Monday following Mother’s Day;

   (d)From 4.00pm on Christmas Eve until 4.00pm on Christmas Day in even numbered years and from 4.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years commencing with the Christmas Eve in 2014;

   (e)By telephone on Tuesdays and Thursdays between 6.00pm and 6.30pm with the mother making the telephone call and the father ensuring that the child is available to take the call;

   (f)On the mother’s birthday if not a school day for a period of five hours as may be agreed and in the absence of agreement from noon until 5.00pm.

6. That the mother’s time with the child be suspended as follows:

   (a)From 4.00pm on Christmas Day until 4.00pm on Boxing Day in even numbered years and from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in odd numbered years; and

   (b)On the weekend of Father’s Day from 5.00pm on the Saturday until the commencement of school on the following Monday morning.

7. That the mother shall collect the child at the commencement of all contact periods and the father shall collect the child at the conclusion of all such contact periods and the changeover shall occur at the McDonald’s restaurants in Town P and Town B respectively.

8. For so long and as far as is practicable, the child remain under the care of Dr C or such other general practitioner at the D Medical Practice as may be applicable and Dr E as the paediatrician.

9. That if the child is in the mother’s care, she nominate a medical clinic in the Town B area for the purposes of any treatment and for that purpose, nominate the medical practice within seven days by writing to the father.

10. That each party keep the other advised as to:

    (a)Their residential and contact details and advise the other parent of any change thereto within 24 hours of such change; and

    (b)Any medical emergency affecting the child whilst in their care as soon as practicable.

11. That each party be restrained by injunction from:

    (a)Discussing the proceedings or allegations made in those proceedings with or in the presence of the child;

    (b)Denigrating the other in the presence or hearing of the child or allowing anyone else to do likewise;

    (c)Attending upon a Centre Against Sexual Assault or similar organisation or treating professional for counselling about the allegations of sexual abuse made in these proceedings without consensus of both parents;

    (d)Recording the conversations of the child for any forensic or other litigation purposes.

12. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the Independent Children’s Lawyer be discharged.

3. That all outstanding proceedings are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stroud & Rees has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11270 of 2011

Mr Stroud

Applicant

And

Ms Rees

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. It is a very unusual step to remove a child from her mother in a family where she has lived all of her life.  Such a decision requires much thought.  This is a case where the Court accepts there is no unacceptable risk of any sort of harm to the child Z (“the child”) in the care of her father yet a significant and unacceptable risk of emotional harm in the care of the mother. 

2. Despite the father’s paucity of experience as a full-time parent, the evidence points to the probability that he will provide a more stable and secure future for the child of these proceedings.

3. The child is aged four and currently lives in Town B where she attends pre-school.  She lives there with her mother (Ms Rees) aged 32 years and her two siblings (from different paternal relationships to her own) who are aged 10 years and 18 months respectively.  Prior to moving to Town B in 2013, the family of the mother and three children lived as a unit in the Goulburn Valley.  The family’s source of income is currently the pension and child support.

4. Mr Stroud (“the father”) is a 28 year old driver who works a 40 hour week either driving in the Goulburn Valley area or working in his employer’s yard.  He lives with his partner and her two children from her earlier relationship. 

5. The focus of the whole case has been on the child.  Serious allegations of sexual abuse have been made against the father said to have been perpetrated on the child.  In evidence, the mother asserted consistently that she believed the allegations to be true.  Victoria Police and the Department of Human Services have had significant involvement in the child’s life since January 2013 and they have expressed only concerns about the mother’s continued repetition of the allegations and her requests to have the child interviewed.

6. The substantive evidence which has been filed by all parties showed that the only person to whom the child expressed those allegations was her mother but, in evidence, the mother said those allegations had been made by the child to the maternal grandmother and also a friend of the mother, Ms F.  Neither of those witnesses gave evidence but, nor it seems, were they involved in interviews with the various authorities such as those who interviewed the child.  If they were so interviewed, the evidence was not presented to this Court.

7. The absence of corroboration in this case was troubling and the mother said that her lawyer did not consider it appropriate to call in respect of her friend Ms F.  That explanation although implausible given the state of the evidence and Ms F’s involvement with a motor cycle group called “[Organisation G]” was said to have been a considered one.  This motor cycle group’s charter has something to do with the protection of children against child abuse.  Ms F, according to the mother, is well-known to the leader of the chapter of this group.  The leader of this group is said to be known to one of the senior officers of the Department of Human Services.  Indeed it was said by the mother that the group leader was an employee of Organisation H who, in Town P, conduct the contact centre.  That organisation has had significant involvement in supervising the father’s time with the child but also changeovers of the child.  The silence of these witnesses was deafening.

8. The absence of the maternal grandmother was explained on the basis that she was suffering from “several transient ischemic attacks” which were said to severely affect her memory and health.  In cross-examination, the mother volunteered that this view was the opinion of her lawyer.  Nothing corroborated that assertion but the mother (presumably with the lawyer’s advice) wanted to use the maternal grandmother’s “notes” taken only a year ago as some sort of evidence of what had taken place in the supervised contact arrangements.  Counsel for the father justifiably objected to the use of those notes.  Whilst the hearsay rule does not apply to these proceedings, the weight to be given to statements which could not be challenged and which were prepared by a person said to have severe memory problems relating to events of only a year or so ago, must be minimal.  That is the weight that I propose to give those notes.  Although the notes are not mentioned again, I have read them.  They have no probative value.

9. Despite the maternal grandmother’s delicate health, it was also said that whilst the trial was being conducted in Melbourne, the three children were being cared for by her.  The glaring absence of the evidence of the maternal grandmother and Ms F was poorly explained. 

10. The Evidence Act 1995 (Cth) does not set out what (if any) inferences should be drawn from the failure of a party to adduce evidence which might be available. Why Ms F was not appropriate remains a mystery. To the extent that the maternal grandmother was unwell, nothing was produced that might establish the basis asserted for her incapacity.

11. From the authority of Jones v Dunkel (1959) 101 CLR 298, a proposition can be drawn that a witness could be expected to be produced by a party if that witness was able to give evidence about a fact in issue in circumstances where the failure to call that person was not satisfactorily explained. That is the common law rule. In this case, it was the mother’s evidence elicited in cross-examination, that people other than herself had heard the statements of the child about being sexually abused. In circumstances where the father’s case is, and always had been, that no-one had heard these allegations other than the mother, one would have expected that evidence to be called. The peculiarity here is heightened by one of the circumstances to which I shall return in which the mother felt it necessary to tape record the child. The transcript of that taping indicated not only a cross-examination approach of the child by the mother but also a persistent endeavour to have the child make the statement that she did. Thus, voluntary statements of the type that the mother said were made to her, and continued to be said, as late as only a week prior to the hearing, needed to be put forward to dissuade the Court from its concern about the mother or at least test the position put by the father. The failure of the mother to call Ms F and the maternal grandmother severely impacts upon the weight I propose to give to the mother’s statements as to what the child told her.

12. The child has been involved in litigation since not long after her birth.  That litigation had culminated in a number of consent orders including a final order in the Federal Circuit Court.

13. In May 2013, more consent orders were made by the Federal Circuit Court.  That was only four months after the child was said to have made the most serious of allegations.  The mother’s explanation for agreeing to the court orders was that she had been pressured by her barrister despite her concerns for the child’s safety.  Bizarrely, she said that she was told that she could go to “jail” if she did not agree.  I hasten to add that her current solicitors and counsel were not then acting for her but again, no indication was given about the advice she received particularly in circumstances where she was willing to waive legal professional privilege in other matters.

14. During cross-examination, the mother volunteered that she knew her stance in maintaining her belief would “probably” cause her to lose the child.  That statement indicated a misunderstanding of what this case was about but it certainly permeated the proceedings.

15. The approach taken by the Court is to decide whether there is an unacceptable risk of harm to the child of being in her father’s care.  If not, is there an unacceptable risk of harm to the child in her mother’s care?  In this case, that latter question must be answered in the affirmative.  But even so, the issue most requiring consideration is which of the two parents is more emotionally attuned to the needs of the child and able to respond to those needs.  Those needs have been identified as comfort, structure, routine and predictability.  For the reasons that follow, I find the father fits that description best of the two.

16. The story of the child’s life to date is not only sad, it is unusual and requires a chronological description.  Before doing that, there are matters that need to be mentioned as follows:

    ·Both parties were represented by counsel;

    ·The Court had the benefit of an Independent Children’s Lawyer and counsel appropriately briefed;

    ·The father relied upon affidavit material of himself, his partner and the paternal grandmother all of whom were required for cross-examination;

    ·The mother relied only upon her own evidence;

    ·The Independent Children’s Lawyer relied upon a comprehensive report of Mr K which was admitted into evidence by consent of all parties.  Mr K was not required for cross-examination and as such, his evidence was unchallenged;

    ·A Children and Parents’ Issue Assessment was prepared in December 2013 for the Court and was referred to in cross-examination.  It was admitted into evidence without demur;

    ·A “Magellan report” and its addendum were admitted into evidence pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”); and

    ·The standard of proof to be applied is the balance of probabilities with particular emphasis on s 140(2) of the Evidence Act 1995 (Cth). That standard has been applied.

The History

1. In early 2009, the mother was a sole parent of L then aged five years.  She was 27 years of age.  Her background history included drug usage and mental health problems.  At that time, the father and the mother “met” on an internet dating site and had one act of sexual intercourse on 3 February 2009.  On 9 February 2009 the mother had sexual relations with someone else.

2. In early March 2009, the mother realised she was pregnant and through social media, contacted the father to tell him there was a “50 per cent chance” he was the father of the child she was carrying.  Her detailed message included the logical biological facts she laid out and the fact that the father might need to go to a doctor because she had a sexually transmittable disease.  That was met by the father’s response:

   Well, like I said if is mine I don’t want it.  I’ll pay the full cost to get rid of it. (sic)

3. The ensuing limited communications are not relevant but the mother did not terminate the pregnancy and in November 2009 the child was born.

4. In January 2010, as a result of her inability to obtain full Centrelink benefits, the mother contacted the father again asking him to complete paternity tests.  Those tests were conducted and the father was found to be the child’s parent.

5. There were very few facts in this case which were common ground.  Even the first contact details were disputed.  The father’s version was that as soon as paternity was confirmed, he sought time with the child but that it was refused by the mother.  The mother’s version was she had offered time but the father was either silently uninterested or simply refused.  I accept the mother’s version because it seems more plausible.  The father’s evidence was that he contacted Organisation H family relationships centre in Town P but the mother said she had no knowledge that he had done so.  In replying to the father’s affidavit which referred to approximate dates of all these events, the mother responded with specificity.  She said after her visit to the father’s home where she took the baby child and with the assistance of Organisation H, supervised time began for a half hour per week visit which continued for six weeks.  It was the mother’s evidence that that took place in June 2010. 

6. As an historian, the father was vague generally and referred to approximate dates in respect of these earlier periods of the child’s life.  What that shows however is his reticence about then becoming involved.  Indeed, his counsel described the father’s initial reaction to the pregnancy as “Neanderthal”.  Reading his electronic communications, I agree.

7. For reasons which were not canvassed in evidence but which now appear at best strange and at worst bizarre, both parties agreed that when the child was six months old, she began spending overnight time with the father.  The mother’s view was that this arose because Organisation H recommended it and although she opposed it at that time, the father said he would take her to court if she did not agree.  The mother noticed that the child was distressed after the 31 hour visits.  I am not surprised.

8. The first sign of problems between the parents occurred in August 2010 when the mother refused to deliver the child to the father.  She said she had heard that the father was not attending the handovers which were taking place at Organisation H and, with advice she said she got from that relationship centre, she presumed the father had lost interest.  There was a dispute about the exact sequence but I again accept the mother as a better historian.

9. The parties went back to Organisation H and perhaps unsurprisingly, the contact arrangements resumed but were altered to daytime visits albeit each Saturday and each Sunday for eight hours at a time.  It is perplexing from common experience with very young children to understand how that was any better than the overnight time but in any event, the time between the father and the child resumed.  In cross-examination, the father agreed that the arrangement was proposed by the mother and he simply accepted it.

10. In addition to this clumsy parenting relationship starting, the parties talked of going to mediation in January 2011.  The social media record produced by the mother showed the parties were communicating such that they thought the mediation that was suggested to them was unnecessary.  Such was their electronic communication that the mother felt confident enough to inquire from the father about “good tattooists” and the father gave her his best advice.  Furthermore, the mother, apparently sincerely, expressed concerns about the father’s long working hours as a driver and noted that it was good that they were getting along for the sake of the child.

1. Around this time, their relationship was indeed improving because in early 2011, the mother described a 2.00am “second sexual encounter”.  It is to be noted that in his opening of the father’s case, specific reference was made to one sexual act which counsel for the father described as common ground.  The father was not comfortable in relation to giving evidence about what the mother had described as this second sexual encounter but candidly agreed that the “encounter” did occur.  It could only be politely described as a Clintonesque event.  Something went wrong soon thereafter however because the relationship deteriorated.  The mother said she was upset and embarrassed about her second encounter because she found out about the father’s relationship with his current partner.  That evidence seems unlikely to be true because I accept the father’s relationship with his partner really only commenced about a year later. 

2. In the middle of 2011, things changed for the child.  She was distressed and unsettled.  The mother attached to her affidavit some contact centre notes.  That was initially objected to by counsel for the father but I indicated I would assess and give such weight to that document as I considered appropriate.  It was hard to see what the notes established because the child’s behaviour varied so much.  However, bearing in mind the mother was producing the document, the entry on 14 July 2011 was curious.  My assessment of the notes which I stress were not subject to any cross-examination, was that in May 2011, the child transitioned both ways without any difficulty.  This child was only 18 months old.  The handovers included the paternal grandmother and there did not appear to be any obvious reticence on the part of the child.  In June 2011, nothing appeared out of the ordinary.  In July 2011, the contact centre observer noted that the child cried as her mother left the building but the worker was able to settle her before handing her to the father and the child then placed her head on her father’s shoulders as they left the service.  There is one entry dated 14 July 2011 in which the service recorded that the mother telephoned them indicating that she had received legal advice about overnight contact.  The mother told the worker that a “magistrate would not rule a child of the child’s age to have overnight contact”.  The worker recorded that the mother had also stated that she was not coping with the child being away from her at night and that her counsellor had suggested that overnight contact cease. 

3. Reflecting upon the 14 July 2011 entry, bearing in mind the mother produced this as evidence, I have inferred that the mother was obtaining counselling but that it was the mother who was not coping rather than the child.

4. The notes of 14 July 2011 also show that the worker had a discussion with the mother about overnight contact and reaffirmed the father’s established relationship with his daughter (whatever that meant).  The service worker reminded the mother that the father had always returned the child at the arranged times.

5. Around this time, lawyers became involved (as will be evident from the contact centre’s notes) and proceedings commenced.  For reasons that are not explained, those proceedings were issued in the State Magistrates’ Court at Town P. The jurisdiction of that court is limited.

6. Despite the problems the child seemed to be having, on 6 December 2011, both parents consented to interim arrangements in the State Magistrates’ Court which ultimately returned the child to the overnight regime on alternate weekends that she had previously known.  She was just over two years old.  The mother gave no plausible explanation about why she agreed to the arrangement particularly bearing in mind the comments recorded in the contact service about what a magistrate would or would not do.  As became clear, the State Magistrate jurisdiction was challenged and the proceedings were transferred to the Federal Magistrates Court.

7. On 13 February 2012, the parties appeared in the Federal Circuit Court in its circuit list in Town P.  All that seemed to occur on the first occasion was that a final hearing was fixed for August 2012 and the parties were ordered to attend a social scientist for the preparation of a family report.  Life for the child went on as usual and the evidence does not indicate whether there were any problems.

8. In June 2012, the parties attended a family consultant and a report was prepared which was not in evidence before me.

9. With the benefit of whatever that report said, on 9 August 2012, final consent orders were made by the Federal Magistrates Court.  Both mother and father were represented at that hearing.  The orders provided for alternate weekend time leading up to two nights per fortnight from March 2013 along with a three hour visit in the middle of each week. 

10. In her evidence, the mother said that she felt “relieved” that the parties had reached agreement in August 2012.  It must be concluded that, absent the issue about the age of the child and her capacity to cope with the time that had been ordered, both parents thought there were no problems.  Indeed, the mother said her relationship with the father was “amicable”.  What was curious however was that changeovers occurred at the contact centre on alternate weekends and at the police station on mid-week visits.  From the father’s perspective, nothing unusual seems to have occurred for months.  From the mother’s perspective, all was not well.  She said changeovers were difficult because the child would hide behind her and sometimes cry.  The mother observed that this did not happen at day care. 

11. I pause at this point to observe that by this time, the child was three years old.  After the parties’ “encounter”, their communication relationship ceased.  I do not know why that happened other than that there was litigation on foot.  The trust must have been lacking because of the handover problems.  In any event, it seems the father not only knew nothing about the difficulties described by the mother but also saw no such problems in his household.

12. The evidence about this period was sparse but the mother began her affidavit referring to the existence of her third child M born in February 2013.  I think I can infer that sometime around the middle of 2012 when the family report was being undertaken, she became pregnant again only this time, to a Mr N.  Virtually nothing was said about Mr N except that the mother’s relationship with him ended in acrimony and that not only was there a need for mutual intervention orders but also M’s time with her father was, and now still is, regulated by Federal Circuit orders as well.  It was the father’s evidence, which I accept, he knew nothing much about L and M.  He maintained that although they attended the Organisation H changeovers, he had not been introduced to them.  Suffice to say, he knows little about Mr N.  With those apparent difficulties (which were not explored in this proceeding) the final orders between the parties were made in August 2012.

13. Because of what was soon to come, it is also perplexing to note that in those final orders, the parties agreed that they should have equal shared parental responsibility.  How decisions were being made about the child remains a mystery because it seems there was no communication.  As an example, during all of the child’s second and third years, she attended a paediatrician.  The father was not involved in that.  The necessity for the watchful eye of police and Organisation H at changeovers also highlights the questionable basis for the equal shared parental responsibility order.  To add to the complexity, the August 2012 orders noted that during the father’s time, he was to be in “substantial attendance”.  That is consistent with the mother’s earlier complaints that the father was not showing interest in the child from which she deduced that his lack of attendance but the attendance of his mother, meant that he was not interested in time with the child.

14. It is also relevant to note that the August 2012 orders were endorsed with the notation that when the child was to start school, the father would seek “further time”.  Nothing much could be seen to be unusual about that except that on the order, the mother noted that she “acknowledges” she would not raise any “defence” pursuant to the “principles in Rice and Asplund (1979) FLC 90-725 with respect to this issue”. The mother’s consent to all of this must lead to the conclusion that she thought about what was good for the child and had confidence in the father to care for her.

15. In January 2013, all of that changed with the first surfacing of the sexual abuse allegations. 

16. On 13 January 2013, the mother said that she found the child inserting the pointy end of the hat of her favourite teddy bear into her vagina.  When she asked the child to stop, the mother said that the child responded that her father did that.  Indeed, the words used by child were:

    That’s not fair, Daddy does it.

17. The mother then telephoned the police who in turn said that arrangements would be made for an interview. 

18. On 14 January 2013, the police telephoned the mother to arrange an interview.  Early in the afternoon, the child was said to have told her mother:

    Daddy’s cheating on me.

19. The last statement of the child provoked the mother to telephone the Department of Human Services but they expressed no concerns because she told them that the child would not be seeing her father in the “near future”.  Notwithstanding the apparent lack of concern by the Department of Human Services, the mother immediately made an appointment with a doctor at the local medical clinic where she informed the doctor of what the child had said.  The doctor referred her to a Centre Against Sexual Assault in the local area.  Again it is to be remembered that the mother provided these records as part of her case.  When the mother had spoken to the child on 13 January on the night before visiting the doctor, it was 8.30pm.  Having said what I have set out above, the child then went on to say:

    Daddy puts toys in my “gina”.

20. According to the evidence presented by the mother, the doctor recorded:

    Child told her that her father used to do that for her with his genitals.

21. The doctor then arranged a physical examination of the child which apparently showed no evidence of physical trauma.  Various requests were made for pathology tests arising out of that examination.  No evidence was presented to the Court of any results that might have suggested there was some foundation for the mother’s concerns.

22. On the following day, 15 January 2013, the mother attended the first police interview but was not present when the conversation took place between the police and the child.  The mother’s evidence was that the detective told her that the child repeated what she had said to her on 13 January 2013.  Although that statement was not challenged in cross-examination, the Department of Human Services’ records (as recorded in their Magellan report) showed that the police advised them that the child made “no disclosures of sexual harm” in that interview.

23. Notwithstanding the apparent lack of any indication of physical trauma from the medical examination and the police response which I accept in the Magellan report is more accurate than the observations of the mother about the police response, the mother unilaterally suspended time that the father was to have with the child.  Notwithstanding the mother had told the Department of Human Services on 14 January 2013 that the father would not be seeing the child in the “foreseeable future”, the reality was that that comment could have only arisen on the basis that she had chosen to stop the time because his next visit was to have been on Wednesday 16 January 2013 the very next day. 

24. The mother did not advise the father of what had happened.  Indeed, it was the solicitor for the father who contacted the mother to ask what was happening because the mother had not attended the changeover on 16 January.  The mother then attended her solicitors and on 25 January 2013, those solicitors wrote to the solicitors for the father.  In a very obscure way, the then solicitors for the mother wrote:

    We are instructed that on 12 January 2013 [the child] made certain discloses (sic).

    Leaving aside the error in the date and the appalling lack of candour in the letter, the solicitor wrote that the mother believed that the child might be at risk if she continued to spend time with the father.  This was an obscure way of saying that she was not going to provide the child but the letter then went on to say that the mother proposed that everyone participate in a round table dispute management conference.  One might wonder how that would work with such serious allegations.

25. On 29 January 2013, the father’s solicitor rejected the mother’s proposal noting that no details had been provided.  He then threatened to issue proceedings.

26. On 1 February 2013, the mother took the child to the Centre Against Sexual Assault where a series of “therapy sessions” took place.  Although the mother annexed to her affidavit a letter from the Centre dated 21 March 2013 which raised questions about some of the interest that the child had in the play therapy, CASA told the Department of Human Services that no “disclosures” had been made.  At the same time, the Department contacted the child’s kindergarten who advised that they had not seen any display of behaviours of concern. 

27. On 6 February 2013, the father filed a contravention application in the Federal Circuit Court.  That was then served upon the mother.  On the following day, the police interviewed the child again, and she said nothing of any note to cause concern to the police.  That interview is recorded in the Department of Human Services’ record which was admitted into evidence but the mother made no reference to this appointment.  I am unaware of how it occurred and why the police who had interviewed the child only three weeks before, became interested again.

28. The father’s contravention application was returnable on 25 March 2013 and it seems that an arrangement was made under which the father’s time was to resume but under the watchful eye of the maternal grandmother.  I have already referred to the notes of the maternal grandmother which in my view, have little probative value.  The proceedings in the Federal Circuit Court were not completed that day but adjourned and the mother then filed an application to suspend the father’s time.  That application was filed on 19 April 2013.  In filing that application, the mother filed a Notice of Risk of Abuse of the child and in turn, those documents were provided to the Department of Human Services under the mandatory reporting provisions.

29. On 8 May 2013, the parties, both of whom were represented, attended a hearing before the Federal Circuit Court before Judge Small.  Orders were made by consent of both parties.  It is again curious that the parties drafted proposals jointly that said that the earlier orders from 2012 were to remain “in full force and effect” save as to what then followed.  The father withdrew his contravention application and the mother withdrew her application for the suspension of the father’s time with the child.  The particular order provided that in respect of both of those applications, there had not been any “adjudication upon the merits” of either of them.  Perhaps that was a strategic withdrawal.

30. Of some significance in that order is that both parents were to obtain a referral to a paediatrician for the purposes of an assessment of the child’s health and (if necessary) any ongoing treatment recommended by that paediatrician.  Not much of note can be seen in those arrangements other than the mother was clearly agreeing to a resumption of time that had otherwise been under the watchful time of her mother up until that point.  However, the orders then provided what could only be described as make-up time.  That was to occur over a space of ten weekends which covered the entire period that the father had lost as a result of the mother’s unilaterial suspension of time.  In addition, the mother consented to an injunction restraining her from taking the child to the Centre Against Sexual Assault or any similar institutional service unless it was recommended by the paediatrician.

31. In the light of those orders, where the mother consented, where both parties were represented and where the court made the order, one would wonder why the mother still harboured any doubts about the safety of the child.  However, before this Court, the mother said that she felt she was pressured by her barrister to agree to the orders that the husband proposed.  She said:

    I did not want to agree to this as I was concerned about [the child’s] safety, but felt that I had absolutely no choice, as my barrister informed me that I could go to gaol if I did not agree.  Against my better judgment, I agreed to the orders.

32. That particular evidence was not challenged by anyone in these proceedings but it is hard to imagine responsible counsel saying those sorts of things to the mother in circumstances where this was the first time that the matter of this type had been before the Court for an alleged breach of any orders.  In any event, to all intents and purposes, those orders should have ended the dispute.

33. The orders then enabled the child to continue her relationship with her father.  However, on 20 May 2013 a further report was received by the Department which alleged sexual abuse.  In addition to the allegations that had already been made, this new one included “further concerns that the child had been involved in oral sex with her father”.  The mother denied making that statement.  The Department of Human Services contacted the police who determined that as four interviews had taken place without any “disclosures” it was not appropriate to further interview as it would be emotionally traumatising for the child.  The Department closed its file.

34. On 16 June 2013, the child was returned by the father to the mother with what the mother observed as a bump on her head.  This time, the mother contacted the father by text message asking him about the injury as a result of which, the father responded that he did not know anything about it.  On the following morning, the mother contacted the medical clinic to make an appointment because she was concerned that the child may have suffered concussion.  Before the appointment and while dressing the child, the child complained that her vagina was sore.  The child made further allegations about her father when she was asked why her vagina was sore.  That afternoon, the child was taken to the general practitioner.  The mother attached the notes of that medical examination to her evidence in chief.  The doctor recorded that the mother was concerned about the bump on the left side of the child’s forehead but she also raised the soreness of the vagina.  The doctor recorded asking the child what had happened and the child was unable to say, so the doctor put the question in a leading way and asked her whether she had fallen and the child responded affirmatively.  The doctor then asked the child whether her vagina was sore and the child again repeated the affirmative answer.  Surprisingly, the doctor then said (according to her notes):

    Was it because of Daddy?

    and the child then repeated in the affirmative.  There was then a notation the child said that it had occurred a long time ago.  The doctor recorded that the mother told her that she thought that the father had been training the child to limit her answers or not even answer when questioned.  That was an extremely serious allegation to make.  It amounts to what is colloquially known as “grooming”.

35. The doctor undertook a physical examination and found no sign of vaginal trauma.  However, the child had vulvovaginitis and was still not toilet trained.  The doctor advised the mother that the child needed to be toilet trained because she would otherwise have irritation from her nappy.

1. The only conclusion one can draw from the appointment with the doctor was that she was more concerned about the hygiene issue than sexual abuse.  Notwithstanding that, the mother then attended the local police station straight after the doctor’s visit.  All of the questions of the police officer were said to be related to the bump on the head and it was the mother’s evidence that the reason she was there was to have the bump photographed.  An examination of the doctor’s note indicates the doctor was not particularly concerned about the injury.  One must ask why the mother would go to the police station if the photograph of the bump could easily be procured.  One must ask why the mother went to the police station other than to seek some form of prosecution.  The answers of the mother about her attendance indicate cause for concern about the mother’s state of mind particularly where the doctor had put her concern to rest.

2. On 17 June 2013, the Department of Human Services received a further report of sexual abuse.  Whilst the confidentiality of the reporter is protected by virtue of statute, the mother set out in her evidence that she contacted the Department that afternoon as a result of statements made by the child.  According to the mother, the Department representative told her that the child should not spend any time with the father until she heard from the police or the Department representatives.  It was the mother’s evidence that she was afraid of a repeat of the contravention proceedings.  Despite what she said she was told by the Department about ceasing contact, it continued as normal.

3. Over the ensuing days after 17 June 2013, the mother recorded behaviour by the child which she considered to be of a sexualised nature.  That included touching the youngest child M inappropriately.  It will be remembered that the mother said that she permitted contact to continue as usual.  In that same period, as a result of the orders made on 5 May 2013, therapeutic counselling was to take place with a Ms O.  That occurred on 19 June 2013 and both parties attended for this counselling session.  It was the father’s unchallenged evidence that in the presence of Ms O, the mother called him an array of names including “paedophile, fucking kiddie diddler and rapist”.  The mother alleged in Ms O’s presence that the father had been touching the child’s private parts on the previous weekend and that he belonged in gaol.  She went on to say that there were plenty of people in Town P that wanted him killed.  The mother advised Ms O that the father had a chronic drug problem and that she knew who his drug dealer was and that she intended to refuse him contact with the child.  It was also the father’s unchallenged evidence that Ms O asked the mother to calm down and not to swear but the mother ignored her.  The counselling session was cancelled.

4. The significance of the father’s unchallenged evidence in that particular area is that it contrasts with the mother’s evidence that she was frightened of stopping the contact yet her abuse of the father and her statement about holiday time with the child is entirely inconsistent with the mother’s indication of fear of the consequence of refusing time.

5. Of some significance also is the fact that the father’s unchallenged evidence was that the mother told Ms O that the father had a chronic drug problem yet at no stage in the evidence did the mother make such an allegation.  Accepting as I do that this incident occurred as described by the father, two observations should be made.  First, this behaviour showed the mother was willing to make serious allegations in a counselling session that in subsequent evidence, were never raised.  Secondly, for reasons to which I shall shortly turn, the mother indicated a fear of the father.  The unchallenged conduct of the mother in that counselling session significantly flies in the face of an assertion that she was in fear. 

6. There is little doubt that on 17 June 2013, the mother contacted the Department of Human Services as a result of what she said she saw the child doing in the form of sexualised behaviour.  It was the mother’s evidence that the child said that her father had been involved in this conduct.  As a result of the mother contacting the Department of Human Services, an interview was set up.  The interview took place on 1 July 2013 and according to the Department records, the child made “no disclosures”.  The Department was sufficiently concerned about what was happening to tell the mother that repeated interviews with the child were not good.

7. The mother was not satisfied with what the Department had done and on 3 July 2013, contacted the team manager Mr J.

8. The mother’s version of the 3 July discussion with the Department was that it arose because she was not happy about the way the Department workers had handled the matter on 1 July and this was effectively an avenue of complaint.  The Department’s view however was that the mother telephoned requesting that the child be interviewed again but Mr J advised that it was not in the child’s best interest.  In my view, notwithstanding what I have earlier said about the mother as an historian, the records of the Department are more likely to be correct because that is what they normally do in the course of their profession.  There does not seem to be any logical reason why the mother would simply ring to complain and I accept it is more likely that she telephoned requesting Mr J to take some steps to insist on the child being reinterviewed.

9. Having been told that the Department was concerned about her behaviour and that there would be no further interviews, the mother took it upon herself to try and obtain some evidence to prove her point.  On the morning of 4 July 2013, when the child awoke, the mother recorded a conversation as she changed the child’s nappy.  Again, it is not necessary for me to set out the conversation in detail but it is quite clear that it was an attempt by the mother to get the child to say something on tape that would be damaging against the father.  It was only after a number of attempts with leading questions that the child responded in the way the mother had wanted.  In cross-examination, the mother conceded that that was an inappropriate way to deal with a child.  I find those sorts of admissions quite damning of the mother and I am not entirely sure that she understood the damage that she was creating. The child was asked sufficient questions to realise that her mother wanted her to answer in a particular way and she responded accordingly.  Bearing in mind the advice that the mother had received at that point from her general medical practitioner, Department of Human Services on two occasions and the police, this was an appalling piece of parenting.

10. It is not entirely clear, but on the afternoon of 3 July 2013, after speaking to Mr J, the mother was driving her motor car with the child who said that she wanted to kill L.  It was the mother’s evidence that not having heard that before, she began recording the conversation on her mobile telephone.  Not only did the mother record this conversation but she then attached a copy of it and sent it to the father.  It is not important that I record exactly what was said but it is clear that the questions put by the mother to the child to obtain the answers that she did, were very leading.  In any event, it is very difficult to know what to make of the conversation.

11. The mother said she was sufficiently concerned about what had been said to return to the doctor only this time, she went to the emergency department of the hospital where she saw a doctor at 8.30pm.  According to the doctor’s notes which the mother sought to admit into evidence, the child was not answering any of his questions other than the fact that she nodded when he asked her whether she was sore.  The doctor saw no physical signs of injury.  He did not undertake a forensic examination.  The doctor referred the child to a paediatric registrar and the matter was then put into the hands of the police and the Department of Human Services.

12. The Department of Human Services, no doubt being aware of what had taken place with Mr J of their office on 3 July 2013, contacted the Victorian Forensic Paediatric Medical Service for advice.  That advice was that further examination of the child was not warranted and could be traumatising for the child but also that it would reinforce the mother’s behaviour which could lead to further harm for the child.  It was at that point, the advice was given to the Department that perhaps the mother should be assessed for mental health issues.  The police were given that advice.  In response, the police indicated that they would have no further interview involvement.

13. As a precaution, the Department interviewed the father on 7 July 2013 and they had no concerns.  Interestingly, Department representatives attended the next contact visit involving the child and her father which took place on 10 July 2013.  The Department representative was there for over an hour and only recorded that the child was a happy and confident child in her father’s care and there were no significant concerns identified.

14. Very shortly after that, a family support worker who was working with the mother and her children noted that the mother was attempting to engage the child in conversations about inappropriate behaviour by the father towards the child.  This was not as the mother had reported things.  All of the mother’s evidence indicated that it was the child who led these complaints but this time, the family support worker recorded that it was the mother who was leading the conversation.  The worker told the mother that these conversations were not appropriate.  That same conversation had taken place only a week before between the mother and the Department of Human Services who advised her that repeated allegations could have an impact on the child. 

15. As the weeks went by, the father was spending significant time with the child by virtue of the orders that required the mother to provide make-up time.  As I earlier mentioned, the handover was taking place at the Town P police station during the week days.  On 23 August 2013, the father attended at the police station to find what he described as three large males all wearing motor cycle colours standing at the entrance of the police station next to their motor cycles.  His unchallenged evidence was that all three men stared at him menacingly as he entered.  He collected the child and left the station and one of them spoke to the child asking her if she had her “stickers”.  The mother departed the police station at the same time and the father saw her go and stand alongside the three males and engage in conversations with them.  The sticker that the child was carrying had the letters “[an acronym of Organisation G]” on it.

16. This particular incident was the subject of considerable cross-examination of the mother.  She saw nothing wrong with what these people had done.  Rather than concede that there were three men who would have been quite menacing for the father, she described them as elderly men one of whom had a heart attack only a short time after this incident occurred.  When pressed, she said that the reason they were there was for her support but I accept that there can be no other explanation than that they were there to intimidate the father bearing in mind the nature of their organisation.  What I found disconcerting however was that this was not just an accidental meeting.  This meeting had been set up specifically by the mother’s friend Ms F.  According to the mother in cross-examination, the leader of this organisation is an employee of Organisation H and she had been with him to discuss the problem only a short time before the meeting on 23 August 2013.  There is no possibility that these men were there for the purposes of supporting the mother.  They were there to intimidate the father.  More disconcertingly, they had given the child one of their stickers so the child had become embroiled in the dispute presumably having been taught some type of protective behaviour which is where the sticker must have become relevant.  The mother was evasive about this organisation and I do not doubt that it is well-meaning but it was the circumstances under which it occurred that I found troubling. 

17. I have earlier referred to the fact that the mother did not call Ms F as a witness.  According to the mother’s evidence, Ms F introduced the mother to the man (who was present on 23 August 2013) and she knew he was an employee of Organisation H.  The orchestrated nature of this meeting clearly showed that the mother would do anything to prove that the child had been sexually molested.

18. After the intense drama of July 2013, apart from the one incident involving the motor cycle group, the father’s evidence was limited to a complaint that in August 2013, the mother stopped his former girlfriend in a supermarket to ask whether or not she was of the view that the father had sexually assaulted the former girlfriend’s daughter then aged 14 years.  Needless to say, the former girlfriend indicated that there was no problem.  Indeed, she described the whole idea as ridiculous.  According to the father, the mother said that the father had been sexually assaulting the child as a result of which he was only able to spend supervised time with the child.  The mother disputed the accuracy of the conversation reported but I accept it is more likely to have happened as the father said.  Why else would the former girlfriend have contacted him?

19. The father’s trial affidavit was filed on 24 June 2014 and he did not address any further complaints relating to the period after August 2013 save that he said that the child frequently asked him what were all the white tablets that he was taking and when he queried why the child was asking, the child told him that the mother had told her that he took lots of white pills.  During the cross-examination of the father, questions about alcohol were raised and the father volunteered that as a driver, he was not likely to be involved in that.  No other evidence suggests alcohol abuse or illicit use of substances.

20. In September 2013, the mother noted an incident in which the child cried for over an hour and did not want to sleep in her bed.  When settling the child, the child told her mother that she did not like seeing her father and that he made her “sad” when he “touches her private area”.  She then asked the child whether the father had touched her private area “that day” but the child responded:

    No, he doesn’t do that anymore.

    The child then requested that she not be sent any more to see her father.

21. The incident at the start of September led the mother to decide not to allow the child to attend her time with her father.  That was a very brave move having regard to the orders of 8 May 2013 and the involvement of all of the professionals in July 2013.  The mother said:

    I knew that this decision would result in court action being taken by (the father) but I was very concerned about [the child’s] behaviour and the fact that she was making regular disclosures to me about her father.

22. It was the mother’s evidence that subsequent to ceasing the time, the child was like a completely different child.  The child did not speak about her father, was well behaved and well-mannered as well as being nicer to her brother and sister. The child started sleeping through the night and in her own bed and started eating normally.

23. At the end of September 2013, the father commenced proceedings in the Federal Circuit Court which came on before Judge Small on 23 October 2013 where an appointment was made for an Independent Children’s Lawyer and the matter was otherwise adjourned to 25 October 2013. 

24. The application by the father was that he have sole parental responsibility for the child and that the child live with him.  He left the question of the mother’s time with the child undefined.  By her reply on 22 October 2013, the mother sought orders for sole parental responsibility and that the father’s time be limited to two hours per fortnight under supervision at the contact centre in Town P.  The mother sought permission to “relocate” the residence of the child to Town Q.  In the support of her application, the mother filed an affidavit which gave her address as care of her solicitors but she referred to the fact that she had relocated to Town B on 18 August 2013.  Two important observations need to be made about all of that.  First, the father attended the police station at Town P on 6 September 2013 expecting to collect the child and she did not arrive.  Well after the appointed handover time, he received a text message informing him that the child was not attending.  Secondly, it was not until the following day that he learned from the father of the child M that the mother had relocated the child to Town B.  This is the mother who had consented to orders for equal shared parental responsibility on 6 December 2011 and repeated that consent on 9 August 2012.  The communication from the mother’s perspective was appalling.

25. On 25 October 2013 Judge Small appears to have transferred the proceedings to this Court and on the same day before Registrar Sikiotis, the parties agreed to a variety of orders at a time when both were represented.  The parties consented to the mother withdrawing her application to relocate to Town Q along with the following orders for:

    ·The mother to attend a psychiatrist;

    ·Injunctions restraining each parent from denigrating the other, discussing the proceeding in the presence of the child, recording conversations with the child or questioning the child in relation to matters in dispute.

26. The injunctions also precluded attendance of the child upon medical professionals except for her paediatrician and the general medical practitioner in Town P.  Most importantly, the parties consented to orders that until further order, the father’s time be suspended save that upon the undertaking given by his mother and his step-father, he spend time with the child every Saturday from 10.00am until 4.30pm.  The undertaking was that those two named persons would supervise the father’s time.

27. I have earlier referred to the fact that on 8 May 2013, consent orders were made and that the mother now alleges that she felt pressured by her barrister to agree to the orders including the statement that I have mentioned in relation to her concern about “jail”.  The court record notes that while different counsel appeared for the mother in October 2013, the same firm of solicitors acted for her.  That same firm of solicitors prepared the affidavit for these trial proceedings.  Nothing was led in evidence to explain why that firm did nothing about the serious allegation against counsel.

28. In her trial affidavit, the mother said that she consented to the orders to which I have referred because she was aware that the supervision would be by the paternal grandmother and/or step-father and all bathing and toileting by the child would be undertaken by those supervisors. 

29. The application of the parties was then transferred to the Magellan list.

30. Despite the order in October and the express undertaking given, on 9 November 2013, the child reported to her mother that her paternal grandmother had “told her off” about lying and put her on a time-out in her bedroom with the door shut and this made her cry.  This allegation was not put to the paternal grandmother nor was it canvassed in any way by the mother’s counsel.  However, the paternal grandmother attached to her affidavit her diary notes and nothing in those notes indicated any problem at all of the nature described by the mother.

31. At the end of November, the mother said that L woke her up at 5.15am one morning because he in turn had woken to find the child lying on top of him “being rude”.  The mother got up and found the child hiding in her bed under her blanket and she described the child as seemingly scared.  Just what all of that was about remains a mystery.  It does however, indicate a problem in the mother’s household.

1. On 20 December 2013, the mother said that the child told her that her father did “rude things” to her “parts” when they were in the “blue car”.  She said the father was too strong when she tried to fight him off.  Later that night, the mother said she telephoned the police unit in Town B and told them what the child had said and they asked her to bring the child to see them the following morning.  That occurred at 10 am on Saturday 21 December 2013 where the mother spoke to a Detective R.  The mother said that Detective R interviewed the child and she believed that the interview was video-recorded.  It seemed common ground between counsel that as a result of inquiries made, no such video-recording was ever made.  Detective R however advised that in the interview, the child made no specific “disclosures” but that she was more concerned about her father getting into trouble if she said anything to the police.  This particular matter came to the attention of the Department of Human Services.  The Department recorded in their Magellan report that on 21 December 2013, an after hours call was received indicating that the mother had taken the child to the police station alleging that the child disclosed in the shower on that day that her father had touched her.  That allegation may have come from anyone but it is curious that the notification came on the same day as the mother attended the police station.  The Department contacted Detective R who advised that the child did not make any allegations of sexual abuse but rather wanted to talk about her father being rude to her or being a “meanie”.  A number of other statements were indeed made by the child and the detective indicated that the child was preoccupied with talking more about getting her father into trouble than anything else and that she liked both her mother and her father.  However, Detective R advised that as far as he was concerned, the child did not understand the difference between truth and lies.

2. Again, the mother suspended further supervised contact times.

3. The events of 20 December and 21 December however were preceded by a home visit by the Department to the mother and at that point, according to the Department, there were no significant concerns for the child in her mother’s care but her mother had stated that the father had sexually abused the child.  The Department representatives were of the view that it was unlikely that the child had been sexually abused by her father.  The Department said that they had significant concerns about the impact of the mother’s allegations and actions and were even concerned that the mother was inadvertently sexually abusing the child through her actions and causing emotional harm to the child.  The Department had ongoing concern for the mother’s mental health and her continual insistence for the child to be interviewed by police and medical professionals where there was no basis for that to happen.  It seems that the Department was aware of the proceedings in this Court as a result of which they took no action.

4. Throughout the month of January 2014, a variety of allegations were made by the child most of which did not have a direct sexual connotation however the mother did notice that on 20 January 2014, the child was sore in the genital area and had little red spots.  Problems were recorded by the mother in March and May of 2014.

5. In June 2014, the mother recorded that the child started having difficulties with toileting and started urinating on her bedroom floor.  When asked why she did not go to the toilet, the mother said that the child said she was too scared and that she regularly wet the bed up to five nights out of seven.  She also recorded that in June 2014, the child started drawing with texta, pen and crayon on her arms and legs again as well as the walls of the house.  She noted that the child had been scraping paint off the corners of the walls with her fingernails.

6. As late as 12 July 2014, the mother gave evidence about a conversation with the child in which she said that her father “put lots of toys” in her private area.  When asked when that happened, the child said it was “ages ago”.

7. The significance of that evidence is that it showed consistent problems throughout the first half of 2014.  It was the father’s evidence that his time had been monitored by the supervisors throughout the period since the October 2013 orders.  He said that he did not see any problems during the time that the child was with him.  That evidence was supported by both his mother and his partner.  When cross-examined, the father said that he had been told of various things such as ADHD but that was as far as it went.  He knew of asthma but he had been informed of such things as a speech problem through correspondence from the child’s paediatrician.  When cross-examined by counsel for the Independent Children’s Lawyer, the father said there were “no dramas” in his house and when it was put to him that the child was a perfect little angel, he replied that she was a normal child.  He said that if there were tantrums, they lasted a minute or two and generally he was able to ignore them.  The paternal grandmother said that the child had never “chucked” a tantrum and the father’s partner did not see any problems at all.  That evidence was not seriously disputed.

8. The only conclusion I can draw is that whatever was happening in the mother’s household, there were clearly problems which disturbed the child.  None of the problems detailed by the mother had been seen by the father or his other two witnesses whom I found to be objective and reliable.  It is in the context of that evidence that I turn to the expert evidence of Mr K which was not challenged and to the exhibit provided in the form of the child’s paediatric report. 

Dr S

1. The May 2013 orders provided for the parties to attend a Dr T but he was not able to assist.  The paediatrician who became involved was Dr S at Town P.

2. In March 2014, Dr S saw the mother and the child because of what were described as behavourial concerns.  Those were listed but sexual abuse was not mentioned among them.  Nothing in the report indicated any concern by Dr S about sexual abuse. 

3. Dr S said the child was a very active child who showed features of attention seeking behaviour.  He thought she had ADHD or ODD but said that required formal assessment and counselling.  Notwithstanding that was recommended in March 2014, nothing further has happened nor apparently, has there been any follow-up by the mother.

Mr K

1. A single expert witness to provide expert advice to the Court was Mr K.  He holds qualifications in psychology.  No party challenged his expertise.  Indeed, no party challenged his evidence and he was not required for cross-examination.  Mr K read a previous family report by Ms A.  That was not in evidence but it seems that he only used it for the purposes of ascertaining background material.

2. In his preliminary remarks, Mr K said that the mother attributed the child’s behavioural problems to the possibility of the child being sexually abused.  Thus, the behavioural issues that Dr S had witnessed were being said by the mother as possibly attributable to the father’s conduct. 

3. The mother reported the child’s sexualised behaviour and Mr K said:

   But it is the cluster of behaviour that ranges from extreme oppositional and defiant behaviour to clinginess, separation problems and battles of control that are of primary concern to (the mother).

4. Both parents were seen by Mr K in February 2014.  At that time, the father was having supervised time with the child and no-one in his household observed any behavioural difficulties of the description given to Dr S.  At that same time, on the mother’s evidence, the child was refusing to sleep in her own room, was scared and was having nightmares.  She described it as particularly bad on the Fridays before going to the father.  None of that sort of conduct was observed by any of the father’s family.  Indeed, it would appear from the evidence of the mother that the child has continued to behave that way throughout 2014.  She gave evidence that as late as the weekend prior to the trial commencing, the child had been distressed and resistant in the motor car which was driven (presumably) over the two hour period from town B to Town P.  In the carpark at the contact centre, the child stood in the car distressed about going to her father.  Because of that evidence, I had the father and the paternal grandmother recalled.  Each of them described the way in which the contact centre worked.  The grandmother was able to say that she could hear the doorbell at the back of the building knowing that that was the mother entering while she sat in the front of the building.  It was only a very short space of time thereafter before the child came in.  The child was brought through the building down a hallway by the contact centre staff.  She said she heard the child say goodbye to her mother and when the child appeared, she walked up to her and sat beside her showing her some toys.  Only minutes later she left and went to the car.  There was no evidence of distress.  Counsel for the mother did not challenge that evidence.

5. Thus it will be seen that the behavioural difficulties encountered by the mother appear unique to her.

6. When attending Mr K, the mother told him that she thought she was acting protectively and Mr K described her as very strong in her belief.  He said:

   These disclosure (sic) are all the more challenging given that [the child] was independently described by others and in particular her paediatrician as having language based problems; my clinical observation was that her language was not particularly forthcoming now, and raises at least a possibility that in order for her to make these statements would have required more in the way of leading or erroneously suggestive questioning.

   While Mr K was cautious about making any conclusion from that language based problem, I am satisfied that at least in relation to the recording of the conversation in 2013, the mother clearly led the child to the point that the child told her what the mother wanted to hear.

7. In respect of her relationship with the child, the mother impressed Mr K as genuinely concerned including about how best to intervene and help the child.

8. Like Dr S, Mr K found interviewing the child challenging.  He described his difficulties in detail but thought her language was poor for her age and its use, was limited.  He observed the child with both parents.  She related extremely well with the father.  He said their mode of interaction seemed a very familiar one.  That is consistent with the evidence that I have heard from the father’s witnesses.  The mother was unable to comment upon that because she has never seen the child being cared for by the father or his family.  The father and his witnesses were cross-examined about questions of difficulty in caring for the child and all appeared to honestly answer that they had no such difficulties.

9. When Mr K observed the mother with the child and her other two siblings, he observed the mother to be calm, settled, focused and attentive.  There were no difficulties in her management.

10. In making his assessment, Mr K had the benefit of a report by a Dr V who, of the mother, described:

    A pattern of disturbance in her interpersonal functioning since her teens, accompanied by inappropriate, intense anger and emotional labiality that changes depending on extraneous environmental factors amidst poor self-esteem and impulsivity in areas of drug use and promiscuity. 

    Dr V described her as being easily frustrated and during stress tended to have paranoid symptoms leading to the strong suggestion that (the mother) may have a borderline personality disorder.

11. In that context, Mr K noted from the Department of Human Services file that in August 2013, concerns in an anonymous report were raised about the mother’s mental health as she was reported as presenting as aggressive towards the children, was irrational and displaying significant mood swings and that she was leaving the children with inappropriate carers.  Mr K noted that in October 2013 there was a report about the mother relating to emotional harm of the children as a result of the family violence involving the mother and M’s father.  That incident was canvassed in the evidence.  The mother conceded that there were now mutual intervention orders in place as well as the fact that the Federal Circuit Court had had to intervene in relation to parenting issues so that Mr N could have time with M.

12. The significance of the observations of Mr K in recording this are important because nothing about this evidence was called by either of the parents nor was Mr K challenged about it by the mother.  There is therefore every reason for me to accept that the mother did not dispute Dr V’s opinion nor the anonymous observations of people in August and October 2013.  Whilst in respect of the latter, the mother was pursuing the authorities to make a positive finding that the child had been sexually abused and needed protection, the combination of the child’s behaviour, language difficulties and the mother’s personality explain what had become an almost paranoid position on her part to establish that the father was a paedophile.  Indeed, counsel for the father began his cross-examination of the mother by asking her about her beliefs as she sat in the witness box that day.  She confirmed item by item her belief that the father had sexually abused the child and therefore that the child is still at risk in his care.

13. The evidence to which I have just referred from Mr K focusses on the mother’s parenting skills and notwithstanding his observations that when he witnessed the mother and three children together she was calm and attentive, that appears to be an isolated situation if I take into account all of the other observations of objective observers over the last two or so years.  It is that evidence and my ultimate finding in respect of that, determines this case.

14. Mr K also read the reports of paediatrician Dr E who had noted delayed development.  That too added to the difficulties that the mother was having raising the child.  Questions were raised in the proceedings about the mother’s physical care of the child and the father and his witnesses indicated that their only concern was that at times the child attended in dirty clothes and wearing shoes that were way too big for her.  Bearing in mind the mother’s financial circumstances, I would not criticise her as a parent for that.

The unacceptable risk issue

1. The obligation of the Court is to determine whether, on the evidence, the risk of harm to the child occurring in the future is unacceptable.  As the Honourable John Fogarty AM, writing in the Australian Journal of Family Law (‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249) said (at 261):

   Unacceptable risk in the High Court's formulation [in M v M (1998) 166 CLR 69] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is 'acceptable' when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of 'benefit to the child'. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the best interests of the child and protection from risk.

2. In M v M (1998) 166 CLR 69, the High Court of Australia considered the degree of risk that is required for the court to satisfy the test and referred to previous approaches to that assessment, such as “an element of risk” or “an appreciable risk” (Marriage of M (1987) 11 Fam LR 765), “a real possibility” (B v B (Access) (1986) FLC 91-758) and “a real risk” (Leveque v Leveque (1983) 54 BCLR 164).  Whilst the High Court in M v M recognised the inherent difficulty in defining what is an “unacceptable risk”, these qualifying words suggest that the risk must, at least, have some foundation in evidence. The unanimous view of the High Court was that the test as to risk was that the court would not grant a parenting order if the parent would expose a child to an unacceptable risk of sexual abuse but there was no onus on the court to make a positive finding that sexual abuse had occurred. 

3. Although the High Court in M v M (1998) 166 CLR 69 formulated the test in terms of the risk of sexual abuse, the Full Court in A v A (1998) FLC 92-800 confirmed that the High Court’s formulation is applicable to other allegations of risk of harm at 84,966:

   The term identified by the High Court in M and M of “unacceptable risk” provides the touchstone for such an enquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involve the assessment of the risk of future physical and/or emotional harm[.]

4. I am satisfied on the balance of probabilities that the mother’s subjective belief is baseless and there is no risk of sexual abuse or physical harm in the father’s case.

5. Given that there is no unacceptable risk to the child posed by contact with the father, I must now turn to the separate question of the wife’s belief in the occurrence of the allegations. 

6. In Donaghey & Donaghey [2011] FamCA 13, the mother’s case was that there was an unacceptable risk of the father sexually assaulting and killing the child. Murphy J not only held that the father presented no unacceptable risk, but also that the mother’s belief was “genuine”, “entrenched” and there was “an element of ‘wilful blindness’ about it”. As a consequence of these findings, his Honour found it was in the child’s best interests to live with the father (having previously lived with the mother) and that the father should have sole parental responsibility.

7. His Honour, at paragraphs 224 – 232 in his Reasons for Judgment, considered at some length the way in which a custodial parent’s belief or concern should form part of the Court’s assessment.  In particular, his Honour said:

   224.In Re Andrew (1996) 20 Fam LR 538 the Full Court examined a line of authority emanating from the unreported decision of the Full Court in Russel v Close (Unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993). The Full Court referred with approval to two statements in particular from that earlier case:

   It is established that in considering the [relevant] factors … an appropriate consideration is the custodial parent's belief that the child or children have been sexually abused whilst on access, the effect of that belief on them as the primary caregiver.

   In upholding children's rights to protection from sexual, psychological or emotional harm the court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent's care-giving ability.

   In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt. [emphases added]

   225.Some caveats on what otherwise might be seen as very broad principle are evident in the emphases added and also in other authorities.

   226.In M & M (Unreported, Family court of Australia, Fogarty, Baker & Butler JJ, Appeal SA44 of 1992, 8 September 1993) it was held:

   The second aspect, namely the wife's genuinely held fear in any event that this may occur also requires careful attention. It is now well established that the genuinely held beliefs or concerns of the custodial parent as to access and the circumstances of access are relevant considerations in deciding what access to order: see s 64(1)(bb)(i) and (v) and the recent decision of the Full Court in Russell v Close (unreported, 25 June 1993).

   However, the relevance of that is not that it gives to the custodian a veto. The relevance is the extent to which it may have an adverse effect upon the welfare of the child. That is, its relevance is that the concerns of the custodian may affect his or her capacity as a custodian, and thus have an effect upon the welfare of the child. Those concerns, although they should be acknowledged, may have little weight where that parent's caregiving capacity will not be discernibly impaired. [emphases added]

1. His Honour then said, although noting that the mother’s belief was not a decisive consideration:

   230.[…] Where a finding can clearly be made that there is such an element in a belief system combined with an adamant refusal to countenance any attempt, including through counselling, that might seek to challenge those beliefs, the application of the principles relating to the role of “genuine belief” is in any event, in my view, called into question. That can be seen from the breadth and multi-faceted nature of the enquiry envisaged by the Act in determining best interests.

2. I respectfully agree with his Honour’s synopsis of the law.

3. It is to the remaining question, the Court’s attention is directed.  It is helpful to first return to the evidence of Mr K.

Mr K considers the parent/child relationship

1. Returning to the question of the relationship of the child with each of the parties and the stark contrast between the way in which they managed her, Mr K opined that it is not uncommon for children who are confronted with inappropriate schedules of visitation between parents who are in a conflictual relationship, to experience significant problems all of which are substantially amplified if the child has a compromised attachment relationship with either of the parents.  He noted that that was made worse where one or both of the parents has a mental health, personality dysfunction, parental deprivation or compromised parenting skills.  He then said that some or a combination of those matters appeared in the history.  I have also earlier expressed my concern about the child having been involved in lengthy separations from the mother at a very early age.  Mr K noted that much of the behavioural disturbance appeared to have occurred after having spent time with the father.  I am not entirely sure that that observation is accurate because the mother’s evidence was that there were oppositional defiance problems prior to delivery of the child at the contact centre.  The evidence of the mother about the behaviour in the nights prior to the commencement of the contact seems equally problematical.  As Mr K observed, the difficulties in the child’s behaviour over the years are likely to have been attributable to the compromised schedule and he then observed that that raised significant concern about the quality of the child’s attachment relationship with one or both of the parents.  He thought that the schedule of visitation that was imposed on the child may well have contributed quite substantially to her behavioural disturbance.  I can only add that I am not surprised.

2. Mr K opined that the description given by the mother of those behavioural problems might reflect more difficulties surrounding her parenting and behavioural management than by abuse.

3. Despite all of that, Mr K was still cautious.  He said there were many complex interacting factors that might account for the family’s presentation one of which could indeed be sexual abuse.  Having heard all of the evidence and put all of the pieces of material together from the Department of Human Services Magellan Report and Mr K’s drawing on the experts such as Dr V and Dr E, as I have already said I can confidently exclude sexual abuse as a problem here.  That being so, the other factors become much more the focus.

4. Mr K said that he thought that the child was quite a manipulative child and that it was not difficult to imagine how the mother would experience difficulties with that behaviour and the attempts to manage the behaviour particularly with the competing interests of the attention for other children.

5. Ultimately, Mr K saw no reason why the child should not be comfortably spending time with her father on at least alternate weekends from Friday afternoon or Saturday morning until the Sunday night.

6. The last recommendation did not comfortably answer the questions raised by the Independent Children’s Lawyer of Mr K so requests were made for an expanded report. 

7. Mr K provided an addendum only days prior to the trial commencing.  He said that in a matter in which there was so much uncertainty and such a poor history of “parental relating” and a lack of any real substance to the parental relationship, what the child needed was a fixed and predictable routine that sought to strengthen and support her relationship with both parents.  His concern was not the quality of the attachment relationship but rather the quality of care that the child received. 

8. Bearing in mind all that I have heard, and the evidence to which I shall refer in a moment about what each party said was their standard of care, again, this case needs to focus on those issues rather than on the unacceptable risk in the father’s care.  In Mr K’s view, the place of where the child lived was less important than the quality of the relationship of the parent.  He said:

   My recommendation is that decisions about her living arrangements should be made on the basis of which of her parents seems more emotionally attuned, able to respond to her needs and provide to her the greatest level of comfort, structure, routine and predictability.

   I accept that evidence. 

9. I now turn then to what each of the parties said was their proposal in relation to the care and how it is currently playing out in the child’s life.

The parties’ proposals for the future

1. The father has made inquiries of the local council who because of the time of the year, said they would do the best to find a place in a local kindergarten for the child.  There was some cross-examination about the nature of the schooling for the child if she remained with the father and I am satisfied that the father and his partner have considered that carefully and that the arrangement would be appropriate for the child.  The father’s partner’s two children were said to have a strong relationship with the child and there is no favouritism between the children.  The evidence about that was not challenged.  The evidence also points to the fact that the child has a loving and recognised relationship with the father’s partner to whom she turns if she needs affection or assistance. 

2. Although no corroborating evidence was produced, the father said that he had been working in a job whereby his employer has told him that he can change to the day shift and indeed, his evidence was that that is now happening.  He will work from 9.00am to 5.00pm and to the extent that the child is in a local school, the after school care seemed quite appropriate.  The father was asked a number of questions about whether the bus that ran from the school they would attend to where the after school care was, was a public bus or a private bus but having heard the father’s partner who gave evidence about what her children currently do in relation to that system, I have no doubt that the child would be well protected on route.

3. In the father’s household, the child already has a bedroom of her own and all of the material needs for a settled routine.

4. To the extent that the father needed assistance because the child might be unsettled, he said that he would seek professional help.  In his evidence on this point which was not challenged, he said that he had spoken to Anglicare in Town P who had advised him that if the child was to live with him, they would happily assist with the transition in any way possible.

5. I accept that the father is a person who readily seeks help but who is a stable and sensible parent.  He said that he had no intention of excluding the mother from the child’s life and would ensure that the child did not miss out on family things such as birthdays, Christmas, Easter and family affairs.

6. I was impressed by the paternal grandmother who is obviously focussed on the child’s needs and as she is close by, I draw comfort from the fact that she would be available in the event of a problem.

7. On all of the indicia, I find that the father has the capacity to provide for the physical, emotional and psychological needs of the child.

8. The mother’s evidence was that she is currently living in a four bedroom brick home in a quiet court.  She has the two children about whom I know little.  Her older child L has some health problems and she described him recoiling and becoming upset with the child’s aggressive behaviour as well as what would appear to be some sort of sexual behaviour.  I know nothing about the child M.  I know nothing about the nature of the relationship between the children other than what Mr K observed for a very short period of time in which the situation was calm.

9. In the mother’s household, the child has her own bedroom and all of the necessities for children playing.  There are pets which enables the child to learn responsibilities. 

10. The child was said to have been enrolled at a local primary school which the mother said had a great reputation and which had smaller than average classroom ratios.  This school offered a variety of programs.  Whilst that might be important for children in later primary school years, it is difficult to know what the education needs are of the child at this stage.

11. The mother’s evidence also was that there was a park nearby and the children regularly played there.  She described the activities in the area including going to the pool, movie theatre and visitations of friends and family.  The difficulty with that is that I have no understanding of who these friends are or what role they play let alone her family.  None of that evidence was presented.

12. Despite everything that the mother had said in evidence and in her absolute belief that the father has sexually abused the child, she said that in the orders that she was seeking, it was important for the child to have a relationship with her father.  She then said:

    I do not know whether the disclosures made by [the child] are true or whether they are a figment of her imagination but I have been very concerned about the disclosures and wanted to ensure her safety.

    That statement flies in the face of her absolute and unequivocal view that the father has committed these alleged atrocities.  She was insistent that in responding to the disclosures, she had followed the advice of professionals, police, doctors, counsellors and the like.  That statement has no credibility bearing in mind all of the evidence that I heard particularly the persistence in trying to have the child interviewed and ultimately conducting a recording.  The mother indicated that whilst the allegations were obviously made, she did not understand why these allegations were made.  The advice of the experts should answer that question for her.

13. The picture portrayed by the mother of a very settled home life with a family of three children does not sit at all comfortably with the evidence of Mr K. The reports to the Department of Human Services malicious though they may have been, were not challenged by the mother’s counsel. The Department of Human Services was not called to justify its position even though its Magellan report was admitted into evidence under Part VII of the Act. The right to challenge that evidence was still available. In this case, all of the experts portrayed a picture of a dysfunctional household even to the extent of the mother using inappropriate carers for the children. There is little in the evidence to indicate the nature of the relationship of the mother with Mr N but it was only in cross-examination that the Court learned that there were mutual intervention orders as a result of an ugly scene between those adults. Somehow, the children have witnessed much of this.

14. When comparing the two households, the most stable and settled must be seen to have been the father’s.  Mr K left the Court to determine which of the two relationships was more stable and as he said, that finding should determine the nature of the relationship between the child and the parent rather than the place where the child lived.  Whilst the place of residence and all of the trappings that come with it are important, it is the stability of the parent and the consistency of care that is most important.  In this case, I have little confidence that the mother can provide that consistent care bearing in mind all of the evidence presented to me.

Supervision

1. Both sides sought supervision of the arrangements ultimately to be ordered.  Having regard to the orders I propose, the only question that is now relevant is whether the mother’s time should be supervised. 

2. In cross-examination of the mother by counsel for the Independent Children’s Lawyer, she conceded that if the child went to live with the father, she would need support.  The mother acknowledged that a decision as enormous as removing the child from the person with whom she had always lived would be hard to accept.  As to how she would cope, the mother said she would see her psychologist with whom she already has an established relationship.

3. In final submissions, counsel for the Independent Children’s Lawyer said that a determination such as I am now proposing to make will be emotionally very difficult for the mother because of its significance in her life.  The comforting thought from the Independent Children’s Lawyer’s point of view was that the mother had professional supports in place.  He then proposed a supervision of the mother’s time until January 2015 on the basis that it would be something of a “holiday” and thereafter, it was hoped that it would be “normal”.  The clear focus of the Independent Children’s Lawyer’s position was that the father was the more stable of the two parents and the concern about the mother’s time in the future would be a destabilisation of that relationship between father and child.  The Independent Children’s Lawyer submitted that the Court should make an order that stopped that destabilisation if it was possible.

4. Counsel for the father submitted that the Independent Children’s Lawyer’s position was acceptable save as to the issue of the transition from mother to father.  He said his client understood the risks involved and indeed wanted the “holiday” a little longer because of the devastating effect on the mother who he described as likely to be an emotional “train wreck”.  Counsel for the father submitted that the mother would see these orders as a losing person at the hands of a legal system and the consequences could be serious.

5. Counsel for the mother who was obviously faced with a very difficult position urged the Court not to take the major step because the child would be separated from her siblings.  The difficulty I have with that submission is that the evidence does not satisfy me that there is such a closeness in that relationship that the child would be distressed by such a separation.  Counsel also submitted that the Court could take some comfort from the fact that the mother was compliant but having regard to the history of this case, there is little substance to that submission.  The mother has consistently unilaterally terminated contact and it is not the function of the Court to punish her but rather to make an order that it is in the best interests of the child.  In my view, it is important for the child to have a stable relationship with her father and that cannot happen with the constant truncated periods of time as well as the inconsistency of the mother’s parenting approach.  I find there is no alternate proposition other than to remove the child and the only concern I have is whether or not supervision is necessary.

6. In Moose and Moose [2008] FamCAFC 108, the Full Court referred to the undesirability of and the practical difficulties associated with, long term supervision in a children’s contact centre. The Court made reference to the judgment of May J in Fitzpatrick & Fitzpatrick (2005) FLC 93-227; (2005) FLC 93-227 in which her Honour explained that:

   Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.

7. The physical well-being of the child is in issue but only to a limited degree in that the mother has endeavoured to have her physically examined but the greater problem is the emotional damage that is being done by the constant reference to having the child affirm that she has been sexually abused or inappropriately dealt with by her father.  That is the emotional well-being to which May J was referring.

8. Supervision is therefore designed to protect a child against either physical or emotional harm in circumstances where the best interests principles require that a relationship between that child and the person who is potentially the cause of that harm justifies the order. Whilst the Full Court queried the benefit to the child of a long term supervision in circumstances where the environment is artificial and limited, one must now question whether the harm is that referred to in s 60CC(2) of the Act. It is the obligation of the Court to protect the child against the physical harm from being subjected to, or exposed to, abuse or neglect. Abuse is defined in s 4 of the Act relevantly here, as serious neglect of the child. In my view, the serious neglect means not just physical neglect. It means avoiding or abdicating some or all of the responsibilities of parenthood one of the most important of which is to protect a child from harm. The continued pursuit of a finding that the father had sexually abused the child in this case amounts to serious neglect and therefore abuse.

9. The two areas where the mother abused the child were in taking her to various authorities in the pursuit of evidence and secondly, enticing the child to confirm that the father had sexually abused her.  Injunctive orders here would protect the child from the former.  The mother’s evidence is that she would not take the child to any of those authorities in the future.  Even if that was not the case, the mother is now sufficiently well-known for it to be unlikely that anyone would do more than accuse her of abusing her own child.  I consider therefore that the former is unlikely to be a problem in this case.  The latter is a far more serious situation.  Whilst the mother not only endeavoured to record the child but continues to believe that what the child has said to her is happening.  If she was to perpetuate that by encouraging the discussion, it would amount to abuse.  Throughout 2014, most of the complaints of the child according to the evidence of the mother have been about the fact that the child has not wanted to attend the handover.  By virtue of the orders I propose to make, that will no longer be a problem because of the collection arrangements.

10. The cause for concern articulated by the Independent Children’s Lawyer and counsel for the father really relates to what the mother might say or do in the presence of the child particularly in circumstances where the mother is likely to be distressed.  It is hard for me to see how that is different from what the child has endured to date.  The child was a bubbly child who was difficult to contain in Dr S’s rooms but also when Mr K interviewed her.  It is difficult to envisage the child being overly distressed by her mother’s distress because the child is likely to be distracted by other matters including her other siblings.  No doubt the mother can obtain professional advice about all of that. 

11. In addition to those matters, if the mother collects the child on the Friday evening of each alternate weekend, there is to be a significant drive ahead of her during which time, prepared discussion and such things as food, will no doubt distract the child again.  I have little doubt that the mother will be a “train wreck” and emotionally distraught by the orders I am about to make but she has other responsibilities to carry out as well as professional help that she can seek.

12. Accordingly, it is difficult for me to see what specific evil the supervision is intended to overcome and even if I accepted that there will be emotional harm for the child in watching her mother in a distressed state, I have no idea whether that would take one week or one year.  As soon as the child understands that she is to live with her father and to spend leisure time with her mother, the sooner a routine will begin.

1. Accordingly, I find there is no basis for me to make an order for the supervised time of the mother if it is intended to protect the child against the psychological harm of watching her mother in a distressed state.

The legal issues

1. The determination of parenting matters is governed by the provisions of Part VII of the Family Law Act. Section 65D empowers the Court to make an order regarding the care arrangements for children including who is to be responsible for making long-term decisions about them, who the children are to live with and also a variety of contact arrangements.

Parental responsibility

1. The father sought sole parental responsibility and the mother that it be jointly exercised. In cross-examination, counsel for the Independent Children’s Lawyer put to the mother that whoever had the predominant care of the child should have the responsibility for decision-making. The mother disagreed and said it should be shared. The father’s position was simply that the mother had never communicated with him and having regard to her attitude to him as evinced by her answers in cross-examination, nothing was likely to change. Counsel for the mother put to the father that the mother had advised about things but his laconic answer was “after the event”. I accept that was the case.

2. This is an issue about important decisions that affect a child’s long term future.

3. Parental responsibility is defined in the Act to mean

   ... all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

4. Save where the court orders otherwise, each parent has that parental responsibility. This joint decision-making process is referred to as equal shared parental responsibility but that term is not defined. As the law provides for parents to decide about their children’s futures and presumably, together, there has to be a reason to remove that responsibility. That legal process can be seen in the rebuttal of the presumption that each parent has that responsibility.

The presumption of parental responsibility

1. The particular provision now considered in Part VII of the Act is really directed to a pathway to be followed about what time each parent should care for a child if an order for equal shared parental responsibility is made by the Court. The rebuttal of the presumption removes that pathway about time returning the Court’s attention ironically to how parental responsibility should be divided (if at all) and then what parenting orders are in a child’s best interests. As the order for responsibility was disputed, the attention must be given to s 61DA.

Is there a basis for a mandatory rebuttal?

1. Section 65D is subject to s 61DA which requires the Court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. That presumption does not apply where the Court finds there are reasonable grounds to believe that a parent has engaged in family violence. Family violence is now widely defined and includes exposure of children to that violence. Section 4AB(1) defines it as including:

   (i)violent, threatening or other behaviour…that coerces or controls a member of the person’s family or causes the family member to be fearful.

2. Despite the mother’s constant reference to fear of the father, it was difficult to get a sense of what it was that the father had done. She moved to Town B in 2013 and whilst her description of the reason for that move seemed to be for pragmatic purposes and nothing associated with fear of the father, she insisted on keeping her address a secret. In her affidavit drawn by her lawyer, she made reference to an incident in June 2014 wherein she noticed that her address was on a prescription and when she got into the car with the children, albeit she was tired, she said:

   Oh shit, he’s got our address.

3. The evidence was presumably led to show the impact on the children but I still do not understand why it was there.

4. As the mother observed, she thought that mediation could sort out things with the father. I have already referred to the various communications early in the piece but the complete shutdown of communications towards the end and the mother’s unilateral actions in ceasing contact. None of those seemed to be justified even if the mother was hearing what she did from the child. The very fact of her consideration of mediation flies in the face of fear.

5. Thus, nothing in the evidence suggests there is a basis for a finding that the father was involved in family violence.

Is there a basis for the discretionary rebuttal?

1. The presumption in s 61DA may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of a child for the parents to have equal shared parental responsibility (s 61DA(4)).

2. In Chappell and Chappell [2008] FamCAFC 143, the Full Court said that the Court had to make a finding that it would not be in the best interests of the child for the presumption to be applied. To do that, the Court said that the prescribed matters in ss 60CC(2) and (3) had to be taken into account. I set out those findings below.

3. One observation that the Full Court made was that if the “track record” of the parents would suggest a high probability of “deadlock”, which would inevitably lead to further proceedings, the discretion could be appropriately exercised to rebut the presumption. Here, the mother’s unilateral actions, explicit belief that the father is a sexual abuser of the child and her constant disdain for him means that it is very unlikely that there will be any communication in future. It is particularly important to note that shared parental responsibility is about major decisions in a child’s life. The mother set out in her affidavit the various things that were going on in the child’s life and when the father was cross-examined about them, his standard response was that he either did not know of the important things, and certainly not from the mother, but that if he was told, it was an afterthought on her part. I accept the father’s evidence about that and find that the Court can have no confidence in the mother to communicate with the father or consult with him about such matters as health and education of the child.

4. It is interesting to observe that the mother said she wanted the responsibility shared and as such, that it could work despite it having been a dismal failure to date.

5. As Murphy J observed ( and I respectfully agree) in Hardie & Capris [2010] FamCA 1046 (at paragraph 69-70):

   An order for “sole parental responsibility”, or something akin to it, suggests (at least arguably by reference to the various statutory definitions, and lack of definition) that the other party has no rights, responsibilities and authority in respect of “major long term issues”.

6. Excluding the mother would mean that she has no rights or responsibilities but more importantly, has no authority to participate in any meaningful way about the child’s future. It is a difficult decision to make when the mother has made all of those decisions to date but in this case, as I intend to make the father the predominant carer, absent some indication that the mother can exercise those parental responsibilities (rather than rights) there is little point in making a sharing order.

7. The best test about whether the parties can make decisions together lies in what the law requires of parents if an order for equal shared parental responsibility is made. Section 65DAC provides that if two or more persons are to share parental responsibility about major long-term issues, any order is taken to require the decision to be made jointly by those persons.

8. That, as the legislation provides, requires each of those parents:

   (a)to consult the other person in relation to the decision to be made; and

   (b)to make a genuine effort to come to a joint decision.

9. The decisions of which the law has concerns can be seen in the definition of major long-term matters. That is defined as follows:

   “major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a)the child's education (both current and future); and

   (b)the child's religious and cultural upbringing; and

   (c)the child's health; and

   (d)the child's name; and

   (e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

10. Whilst the proof of the pudding can often be seen in the eating, there has been nothing in this case to satisfy me that any of those legislative responsibilities could be so fulfilled. There is no basis here for the Court to make an order for equal shared parental responsibility. 

11. The provisions in s 65DAA do not apply. The issue as to the sharing of time is determined by what is in the child’s best interests.

12. In this case, the geographic separation of the parents means that a sharing of the child’s daily routine is impracticable. That requires the Court to do the best it can with whatever proposals there are as to how the child would be cared for.

13. Section 64B(1) defines the various aspects of a parenting order.  An order may be made in relation to any aspect of the care, welfare or development of a child as well as any other aspect of parental responsibility.  When making that parenting order, s 60CA requires the Court to consider the child’s best interests as the paramount consideration. 

14. I have already set out how the evidence evolved and what Mr K saw as the distinction between the two parents and how the social scientist would decide the best interests’ principle. The Act has a different approach because of the requirement of the Court to consider a number of factors when determining best interests yet when analysed, they do indeed come back to the simple principle as described by Mr K.

15. To determine what is in the child’s best interest, s 60CC provides a check list of how those interests are determined.  The primary considerations are:

    a.the benefit to the child of having a meaningful relationship with both 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.

16. The child has a good relationship with, and benefits from, her relationship with her father. The evidence of the father’s family and Mr K’s objective analysis of his abilities as a parent, indicate that he has a close and responsible attitude to parenting and has the means and ability to carry out all of the physical and emotional needs for the child. When the mother and daughter relationship is analysed, there are objective signs of problems. There is the constant engendering of the view that the child has been assaulted. The questioning of the child by her mother about what has happened despite not only social scientist warnings to the contrary but also court orders leaves the Court wondering whether there is a protective approach to parenting by the mother. She has also exposed the child to the problems she has with M’s father. The mother exposed the problems between the child and L which seem to be much more than sibling spats. The language difficulties and the behavioural problems identified by the paediatrician in early 2014 seem to have been left alone. When compared to the father’s household, the mother’s parenting ability is dysfunctional. I have no corroborative evidence from anyone about her local support systems.

17. Accordingly, the evidence about the nature of the relationship between the mother and the child in relation to the most important aspects is missing. The father’s proposal about the importance of his relationship with the child and his fostering of the child’s relationship with the mother has a ring of reality about it. The mother’s statement is hollow.

18. In balancing these things, I do not deny that the mother has not only had the major care role of the child since her birth but that she also loves her dearly. That cannot be denied and it is important to observe that notwithstanding the father’s appalling start, he has showed considerable persistence in wanting to fulfil responsibilities. It must also be acknowledged that the child has never been removed from the mother for protective purposes although that seems to have been a possibility from the Department’s point of view had the mother continued her pursuit of having the child interviewed. The mother’s high-handed attitude to unilateral action in the face of experts shows that she did not value the father’s relationship with the child and her current proposal that she will foster such a relationship means little when she confirms the belief she has that he has abused the child and is likely to do so.

19. Thus the benefit that the child will receive from her father is much more likely to produce stability and security than if she is with her mother.

20. The second limb in s 60CC(2) is not of concern as I have found that family violence is not an issue and that the child is not at risk at all in the father’s care. There is a real risk to the child of psychological harm in the mother’s care for the reasons set out above.

21. Section 60B of the Act provides the principles and objectives of Part VII of the Act. It is the right of a child to have contact with and communicate with both parents but that is always subject to the best interests of the child. Those objects and principles guide the Court’s determination.

22. Section 60CC(3) sets out additional considerations to those set out above.  Those are now dealt with as follows.

23. The child is too young to fully comprehend what this dispute is about and thus I do not consider it appropriate to give any views she might have, weight.

24. Section 60CC(3)(b)(i) requires the Court to consider the nature of the relationship of the child with her parents but others too. I have considered the parent and child relationships above. The others to whom the Act draws attention must be the siblings and step-siblings. The relationship with the father’s family members including the partner’s two children clearly appears as close but I consider the separation of the child from her siblings more important. Here, the evidence shows little of a cohesive and loving relationship with L and I know nothing about the child’s relationship with M.

25. There was evidence of the nature of the child’s relationship with the extended family members on the father’s side and that seems sound. The father has indicated that if he had responsibility for the child, he would ensure that the mother’s side is not forgotten.  I know little about the mother’s family.

26. Section 60CC(3)(c)  requires the Court to look at how the parents have been  facilitating both their own relationship with the child. There can be little more said than what I have already mentioned.

27. Section 60CC(3)(d)  requires the Court to consider the change in circumstances arising from any orders and how they would impact on the child. I have the evidence of Mr K that the residence was not the main issue. I also have the unchallenged evidence that the father has had significant weekend time since the orders were last made because of the unilateral breaches of orders made by the mother. Nothing I heard suggested that the father could not manage the difficulties that the mother seemed to say the child had and the mother did not indicate that the child would have difficulty with such a substantial change. All of the focus on that latter point related to the mother’s capacity to cope. The nature of the relationship with the two siblings does not suggest that the child will be troubled by their absence.

28. Section 60CC(3)(e) requires the Court to consider the practicality and expense that would arise from any orders. As the parties currently live far apart, I consider that only weekend time and holiday time will be functional.

29. Section 60CC(3)(f) and (g) relate to the capacity and characteristics of the parents. I have comprehensively dealt with those matters above and there is little further I can say.

30. Section 60CC(3)(i) refers the Court to the attitudes of the parties to the child and the responsibilities of parenthood. Nothing in the evidence suggests there has been anything other than a responsible and focused part played by the father. My concerns about the mother have been set out above.

31. Family violence considerations in s 60CC(3)(k) are not relevant here for the reasons outlined.

32. In my view, based on the evidence, it is hard for me to see any change in the future. Thus, as Mr K said, this is about who is best to provide that secure relationship. I find it is the father.

33. Counsel for the mother at one point suggested that if there was a change of residence, the mother should be given 18 months or so to get help and then she could anticipate the return of the child. The impracticability of that ought be obvious. There is no guarantee that the mother will get help as I am not confident that she sees there is a problem with her parenting. In any event, this is about security and stability for the child not the mother. The orders should therefore be final.

34. I do not propose to make orders as proposed by the father and the Independent Children’s Lawyer about medical and other health issues as they are covered by parental responsibility.  It is unnecessary for me to authorise the father to give the health professionals the reasons in this case because they will make their own assessments about the child’s needs.

35. Accordingly, I propose to make the parenting orders at the beginning of these reasons.

I certify that the preceding Two Hundred and Nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 September 2014.

Associate: 

Date:  11 September 2014