Taggart and Vlahos

[2020] FamCA 128

FAMILY COURT OF AUSTRALIA

TAGGART & VLAHOS [2020] FamCA 128

FAMILY LAW – CHILDREN – Contested residence – where the Court finds an immediate change of primary care for the child is required to protect the child from further psychological harm from her mother – final orders made for the child to live with the father and the father to have sole parental responsibility – interim orders made for a moratorium of time between the child and the mother.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Taggart

RESPONDENT: Ms Vlahos

FILE NUMBER: TVC 315 of 2010

DATE DELIVERED: 6 March 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Townsville

JUDGMENT OF: Baumann J

HEARING DATE: 25, 26 and 27 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Pack

SOLICITOR FOR THE APPLICANT: Rennick Lawyers

COUNSEL FOR THE RESPONDENT: Ms R Lyons

SOLICITOR FOR THE RESPONDENT: Stevenson & McNamara Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr A George

INDEPENDENT CHILDREN’S LAWYER: M. M. Meehan, Solicitor

Orders

1. That the child, X born … 2009 (“the child”) live with the father from today, 5 March 2020.

2. That the father have sole parental responsibility for major long term decisions for the child but with an obligation to consult the mother before making a long term decision in accordance with Order 3 hereof.

3. That if the father, other than in an emergency, intends to make a major long term decision affecting the child, then he shall:

   (a)give notice to the mother in writing of the decision he intends to make and the reasons for that decision, allowing the mother to respond within fourteen (14) days;

   (b)consider any written response by the mother and her reasons for agreeing or disagreeing with the father’s intended decision; and

   (c)communicate to the mother in writing within one (1) month of his first communication with the mother, the decision he has made and the reasons why he has done so, including, if that be the case, why he did not accept the mother’s contrary reasons.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the child shall not spend time or communicate with the mother, unless the father elects to facilitate such time, before 1 July 2020 and further save as to:

   (a)the father will ensure the child sends to the mother a card and/or gift for Mother’s Day 2020 and on the mother’s birthday on … 2020; and

   (b)the father will pass on to the child any appropriate gift, card or letter the mother chooses to send to the child via the father for the child’s birthday on … 2020.

2. That the father shall, as soon as change of residence has occurred and as regularly as recommended by Psychologist Ms H, engage the child in ongoing therapy with Ms H.

3. That to facilitate the child’s therapy, the Independent Children’s Lawyer is authorised to provide a copy of the Reasons for Judgment delivered 5 March 2020, once published, to Ms H.

4. That the father shall be responsible for the costs of the child’s therapy with Ms H, but if he so desires, is authorised to seek the prescription of a mental health plan for the child from the child’s general practitioner.

5. That pursuant to Section 68B of the Family Law Act 1975:

   (a)the mother is restrained and an injunction issues restraining the mother from seeking to contact the child either physically, by telephone or other electronic means (including FaceTime, Facebook and other social media vehicles); and

   (b)attending at the child’s school and seeking to contact the child at school or remove the child from the school environment.

6. That the father shall provide to the mother a copy of any school progress reports, end of term reports or the like that he receives as a parent.

7. That the parents shall provide to the other parent an address where they can, either by postal service or electronic means, provide any notice or document to the other parent strictly about the child and her care, welfare and development, however the father shall not be required before any resumption of physical time between the child and the mother to answer every communication the mother may send to the father.

8. That the father shall inform the mother in writing if he intends to move the child’s residential address from his current home address before such change occurs.

9. That the parents are authorised, if they wish to do so, to provide a copy of the Reasons for Judgment delivered 5 March 2020 and the family report prepared by Ms A dated 28 November 2018 to any personal therapist they engage to provide them with personal counselling, therapy or other psychological advice.

10. That the father be at liberty to provide a copy of this Order to the child’s school and general practitioner who the child consults.

11. That the child will reside in C Town locality and the father will not relocate the child to another locality without leave from the Court or written agreement of the parents.

12. That the child shall continue to attend E State School and shall not change her schooling without prior order of the Court or written agreement of the parents.

13. That the father is restrained and an injunction issues restraining the father from:

    (a)discussing the Court proceedings or the evidence heard in the Court or the Reasons for Judgment delivered, with or in the presence of the child;

    (b)making any denigrating or hurtful remarks about the mother to or in the presence of the child;

    (c)engaging the child in further investigations by the Queensland Police Service and/or the Department of Child Safety, Youth and Women without giving prior written notice to and obtaining the consent of the Independent Children’s Lawyer.

14. That pursuant to s 65L of the Family Law Act 1975, a Family Consultant in the Townsville Registry will today seek to explain these Orders to the child and facilitate the handover to the father today.

15. That each party shall file and serve by no later than 4.00pm on 16 July 2020 an Affidavit setting out:

    (a)any developments or issues that have arisen in respect of the child since the making of the Orders today;

    (b)a minute interim orders sought in respect of time arrangements between the child and the mother to resume time and any conditions or proposal to facilitate those arrangements; and

    (c)if a party proposes that time be supervised between the child and the mother, then evidence as to the availability and costs of such suggested supervision must be provided.

16. That these proceedings be listed for further Case Management Hearing at 9.30am on 23 July 2020 in the Family Court of Australia at Townsville.

17. That the Independent Children’s Lawyer be at liberty to apply.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC 315 of 2010

Mr Taggart

Applicant

And

Ms Vlahos

Respondent

REASONS FOR JUDGMENT

Introduction

1. When X was only eight months of age, her parents separated and almost immediately thereafter the father commenced proceedings and as the contextual history reveals, X’s parents have been litigating thereafter for most of her life.

2. The proceedings which resulted in a hearing that finished on 27 February 2020 had as their catalyst events in April 2018 – but in reality, as I will observe, the low levels of mistrust and lack of respect between these parents have been simmering after their short relationship ended in December 2009 and the events of April and the consequences that have followed added fuel to the fire.

3. Sadly, the situation confronting the Court is two polarised positions (only slightly modified by the final submissions) where each parent seeks residence and sole parental responsibility – and essentially each parent seeks minimal or no contact thereafter until various conditions and therapy are undertaken, between the child and the other parent.  I will more fully discuss some of the nuances of the competing proposals when seeking to explain how the Court has reached its decision as to the orders at this time which meet X’s best interests, which is the paramount consideration.

Statutory pathway

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

brief contextual history

1. Statements of fact hereafter shall be construed as findings of fact.

2. The Applicant mother and Respondent father, now both aged 49 years, separated in December 2009 and the first set of “final parenting” were made on 9 March 2011 when X was approaching her second birthday.  The graduated increasing time as ordered for X to spend with the father seemed to create tensions between parents who really knew little about each other.

3. Interruption to the father’s time with X was caused by concerns the mother raised with Police in early 2015, that the father had assaulted the child.  The child gave her first s 93A interview to Police in February 2015 and shortly thereafter the father commenced contravention proceedings and the mother filed an application to vary the then current parenting Orders.

4. The Police investigated the allegations and decided not to prosecute.  The father denied strenuously any inappropriate behaviour by him.  In the context of those proceedings, consent interim orders were made on 19 June 2015 for time with the father to recommence and further that an equal time arrangement (on a three night rotating basis) was to occur.  Relevantly, the consent order of 19 June 2015 contained the following notation:

   “A. The mother, acting on legal advice, accepts the outcome of the Police Investigation as recorded in the file of the Queensland Police Service that has been subpoenaed and accepts that compliance with this Order and the Order dated 9/3/11 will be controlled and supervised by this Court in accordance with the Family Law Act and the Rules of Court.”

5. I must admit, I find the text of the notation as somewhat ambivalent and confusing.  Seen in the context of the mother’s evidence that she felt pressured into accepting the Police position, I have no doubt the mother disagreed with the decision by the Police at that time.

6. Nonetheless, with the benefit of an Independent Children’s Lawyer (“ICL”) and a family report, both parents gave their consent to “final” parenting orders again, made on 3 November 2016 which provided for the parents to have equal shared parental responsibility and for X to spend equal time with the parents - in a week about regime.  One might have hoped that regime would survive the existing poor communication and parental mistrust, however on 24 May 2017 (six months after final orders), the mother obtained a Domestic Violence Order for two years naming the father as the Respondent, and within three months the father had sent two aggressive text messages to the mother – which he acknowledged contravened the Domestic Violence Order, and upon his own admission he was convicted of two breaches of the Domestic Violence Order, was convicted (with no conviction recorded) and fined.

7. The father told the mother in September 2017 he was going for “full custody”.  This was provocative; was not accompanied by any application and was likely to have upset the mother.

8. Despite the increasing tensions and provocations, I am satisfied that X was progressing well in the equal time arrangement.  There is no evidence of difficulties at changeovers (although the parents rarely spoke to each other); involvement by agencies or non-compliances with the order.  However, I am satisfied that by this time X was well aware of the antipathy each parent held for the other, which continues.

9. The first week of the Easter 2018 school holidays, which X spent in the father’s care (30 March 2018 to 6 April 2018) included a trip to a camping site and I deal specifically with the alleged abuse on 2 April 2018 in more detail. 

10. The child was returned to the mother by the father on 6 April 2018, and surprisingly as events have unfolded, the mother returned the child to the father on 13 April 2018 for her week with the father.  The father returned the child to the mother on 20 April 2018 - and that date proved to be significant – particularly because it was the last day the child spent time with the father – either in person or otherwise.  As at the conclusion of the hearing before me, X has not spent any time with her father for 22 months.

11. Even by the end of June 2018, when the Police had advised the parties (on 4 May 2018) that they were not prosecuting the father and the Department had advised the parties (on 29 June 2018) that the concerns raised were not substantiated and no further investigation was to take place, the mother gave no indication she was prepared to allow the child to spend any time with the father.

12. The father had, on 15 May 2018, filed a Contravention Application and one wonders what more he could do.  With regret, that Application was never dealt with – with the initial hearing set for 28 November 2018 resulting in orders for a family report and supervised visits at B Group.  I well understand and accept the father was becoming frustrated, disappointed and angry.  His demeanour did not improve when:

    a)the family report that issued on 29 January 2019 expressed some serious concerns about the mother’s behaviour;

    b)the mother obtained a temporary Domestic Violence Order and sought a variation of the soon to expire Domestic Violence Order extending it further, based primarily on an alleged incident at J Shopping Centre on 6 November 2018; and

    c)when finally on 17 April 2019 B Group were able to complete their intake as a precursor for the supervised time ordered by the Court five months earlier, B Group decided they could not assist the family because the child X was expressing in strong terms she was not “going to see my father”;

    d)the father had no information at all from the mother as to the child’s education as the mother had unilaterally removed the child from her school in May 2018 (despite the order for equal shared parental responsibility), and enrolled the child for distance education (a form of home schooling).  The mother resisted retuning the child to her public school and was ordered on 13 August 2019 to return the child to school on 19 August 2019.

13. The Federal Circuit Court of Australia transferred the proceedings to the Family Court of Australia on 27 June 2019 and the father was still spending no time with X.

14. I note that when B Group refused (as they were entitled to do) the supervise time, the father’s proposals to move to a private supervisor was not accepted by the mother.  Although the mother says costs was the main issue, her evidence under cross-examination was that she did not feel it was her responsibility to do anything – relying on the Court and Court orders.  When the father, sensibly, withdrew (at the Court’s suggestion) his Contravention Application and formally filed an Application for residence, the expressed views of the child against spending time with the father persuaded the Court to adopt the ICL’s submission to engage local Psychologist Ms H for the purpose of reunification of the child and the father.  The first consultation occurred on 31 October 2019, however for the reasons set out in her report (Exhibit 1), Ms H was not able to get X to agree to meet the father.

15. In all respects, the matter had come to a halt, relying upon the hearing before me to provide a solution.

16. One further historical event of significance occurred before the hearing.  The mother pressed her application to vary and extend the Domestic Violence Order, and the matter was heard in the Magistrates Court of Queensland by a Magistrate who delivered an oral judgment on 18 February 2020.  Those Reasons have been transcribed and tendered as Exhibit 6.  I adopt the decision and findings made by the learned Magistrate (pursuant to s 69ZX(3) about the J Shopping Centre incident that the father’s actions were not an act of domestic violence, accepting as he appears to do, the investigation of the Police about the incident as a “non-event”, and the Magistrate’s finding that the J Shopping Centre incident was “only an incident because Ms Vlahos made it so”.  I adopt the finding of the Magistrate that the text messages relied upon by the mother as acts of domestic violence were acts of domestic violence (he of course had been convicted of breaches), but that the mother had not satisfied him that the mother’s application to vary and extend the Domestic Violence Order was either necessary or desirable.

17. Although I note the Magistrate’s comments on the parties’ demeanour, and his findings about the “fry pan” incident, I regard it as appropriate to make my own findings in respect of those issues (the frying pan and punch).

18. Although I do intend to make some findings, as required by authority, within the matrix of the relevant s 60CC(2) and (3) factors, I elect to deal with some controversial facts separately and discretely now.

The alleged abuse of the child by the father in April 2018 and resultant investigations

1. In my view, the best way of understanding these allegations is to firstly provide a chronology of the sequence of events, followed by findings in respect of the evidence.

2. The relevant chronology includes the following events:

30 March 2018	-	The child begins her week of care with the father being the first week of the end of term one school holidays.
Between 30 March 2018 and Monday, 2 April 2018	-	The child alleges to Police in the s 93A interview that the father punched her at his home arising from an allegation of lack of toilet paper.
2 April 2018	-	The child returns to mother for her week of care.  The mother says the child explains the burn on her right knee from a frying pan and the mother takes a photograph (Exhibit 8).  The father does not raise with the mother the incident and the mother does not raise her concerns with the father.
13 April 2018	-	The mother returns the child to the father for his week of care (the first week of school term two) and does not mention the scar or a bruise.
20 April 2018	-	The child returns to the mother’s care for her week of care.  The mother says that in the car from changeover, the child discloses that the father “punched” her on the left thigh leaving a bruise.  The mother takes photographs of the bruise (Exhibit 9).
21 April 2018	-	The mother takes the child to see her general practitioner, complaining of abdominal pains.  The medical centre notes (Exhibit 10) noted, on examination, that “there is bruise on her low thigh Lt thigh x 2 x 3 cm.  old one punched only once – as she wants go toilet”.  The notes reveal a letter of referral to the C Town Hospital Emergency Department provided to the mother who is recorded as saying “she will discuss in detail with Hospital doctors” with further action once come from Hospital.  The mother does not take the child to hospital as the general practitioner recommended.
23 April 2018	-	The mother contacts the Department with her concerns.  The mother claims to have rung the Department after 6 April 2018, but there is no evidence she did so to corroborate her evidence that she did.
23 April 2018	-	The mother makes initial contact with the Police, and the Department alleging the child says the father “punched her in the leg and also burned her with a fry pan out of anger”.  Initial version is set out at page 15 of Exhibit 11.
24 April 2018	-	The mother removes the child initially from her school.
26 April 2018	-	The mother provides a written statement to Police.
27 April 2018	-	The mother withholds the child from the father, as the child was due to return to the father that day.
28 April 2018	-	The Police conduct a s 93A interview of the child, where the child begins with a statement (when asked what she was here for) that she is here to tell the Police “how mean the father is to her”.
1 May 2018	-	The father is interviewed by Police denying that he punched the child and asserting the fry pan incident was an accident.
2 May 2018	-	The father is interviewed by the Department.  His version as recorded is consistent with evidence given by the father in his Affidavit (see page 86 of Exhibit 12).
4 May 2018	-	Police advise the mother they do not intend to prosecute the father as there is “insufficient evidence to substantiate that offence has occurred”.  Police assess that “evidence indicates offence did not occur”.  I find the mother did not accept the Police assessment.
8 May 2018	-	After the child had returned to school briefly, the mother asked the school administration officer to arrange for the school chaplain to speak with X.  The chaplain (Ms K) did so and recorded her comments (see Exhibit “M-22”).  For the first time the child alleges that during the “toilet paper” incident the father said to her “I’m going to kill you”.  Although X told the Chaplain she had told Police about “all this”, the child did not mention to Police the threat to kill her in the s 93A interview.
10 May 2018	-	Department CSO Mr M provides a report to NQ RIS (North Queensland Regional Intake Services) (page 62 of Exhibit 12) where the threat to kill is mentioned again.  The report seems to reflect the discussion/note with chaplain Ms K.
11 May 2018	-	The mother directs her solicitors to seek to review the Police finding, which is undertaken (slowly) and results in a decision by a higher ranking officer made in December 2018, to accept the earlier finding.  I find the mother used the fact that the Police were reviewing the no prosecution decision, as a further basis to delay the father spending any time with the child.
15 May 2018	-	The father files a Contravention Application, which is adjourned by a Registrar on 18 July 2018 for hearing to a date to be fixed before a Judge.
16 May 2018	-	The Department interviews the child at her home.  The child, for the first time, asserts during the fry pan incident the father said “I’m gona burn you” (page 81 of Exhibit 12).
8 June 2018	-	Updating telephone call between the Department and the mother (see page 91 of Exhibit 12).  The mother’s reaction to being told by CSO N that there has been some additional information reported to child safety about “worries about X being coached to say things” is to make further new allegations about the father (e.g. about killing her dog; always “coming back with little bruises on her arms and legs” that the child cannot explain).
14 June 2018	-	The Department again interview the father by telephone.
19 June 2019	-	The Department interview the child again at the Department’s office (see page 83 of Exhibit 12).
22 June 2018	-	The Department conducted further interviews with the father, paternal grandmother and paternal aunt Ms L (page 94 of Exhibit 12) when the father and his family raise concerns about the mother.
27 June 2018	-	The Department further interviews the mother by telephone (page 96 of Exhibit 12) mostly about the child’s non-attendance at school.  Discusses how her still-born sons are referred to by X as her brothers in heaven “Y & Z”.
29 June 2018	-	The Department confirms that they have finished their investigation and have not substantiated harm in the father’s care, summarising that X had not been harmed (under the definition adopted in the Child Protection Act 1999 (section 9)) and that she is not at unacceptable risk of harm at that time.  The Department assessment further noted that: “Despite Mr Taggart’s claims that Ms Vlahos is turning X into a sociopath, and observations from Departmental workers that X’s disclosures do not appear completely genuine, there is insufficient evidence to support this.  Therefore it cannot be said that Ms Vlahos has caused emotional harm as a result of her helicopter parenting and gas lighting.”

1. At pages 124 to 129 of Exhibit 12, the Departmental officer provides a fulsome assessment.  I have taken the assessment into account, noting of course that it was made in June 2018 (nearly two years ago) and the author of the assessment has not been cross-examination.

2. In my view, on this chronology and other evidence, I make the following findings:

   a)The incident with the fry pan was an accident and no intent to hurt the child was shown by the father.  I accept his evidence he has not physically disciplined the child.  The child’s basis for asserting to the mother that the father’s actions were deliberate are not established by the evidence;

   b)I am not satisfied that the father punched the child around the toilet paper incident at all;

   c)The versions given by the child continued to change.  The child could not say when the punching incident occurred – other than to police (that is “before the scar”);

   d)The mother was likely to have been constantly speaking to the child about the incidents – at least from 20 April 2018.  I do not find the mother “coached” the child, but I do find her continual discussion (in part arising from the mother’s anxiety about the father’s desire to go for full custody), shaped what the child said and caused the child to continue to add further comments along the way.  The opening remarks to Police by the child in the s 93A interview, suggest strongly, some earlier preparation of the child by the mother – to, without really any initial exploration by Police, express how “mean” her father was;

   e)The photographs are of little value.  The photograph of the scar reveals some superficial wound – certainly not bleeding, gaping or pussing as the mother asserts.  If the girlfriend of the mother’s son looked at the wound and formed a different view (she is also alleged to have heard a version of the incident) then she would have been called as a witness.  She apparently lives in O Town.  A failure to explain why she was not called, allows an inference to be drawn, which I do, that she could not give evidence likely to assist the mother’s case;

   f)The mother’s failure, on medical advice, to take the child to the hospital is not adequately explained.  I do not accept she was only to go to hospital if the abdominal pains got worse.  I find the mother was seeking to gather evidence about the bruise but the general practitioner’s comments were likely to mean taking her to hospital was not likely to assist gathering evidence.  To suggest, as the mother did, that the poor English skills of the general practitioner caused the cryptic note, did the mother little credit.  She could have called the doctor as a witness but did not do so;

   g)I find the mother prepared the child for the interview with the chaplain, encouraging her to speak to Ms K.  On balance, I find it was really another evidence gathering exercise.  At this time the child was not, it seems, attending school regularly anyway.  I find this appointment was sought after the Police decided not to prosecute, so that the mother had some basis to keep withholding the child from the father;

   h)I find the mother’s decision to remove the child from school, as she did, was an act partially influenced by the mother’s concerns the father was seeking information from the school and less because she feared the father would remove the child.  Only when she had to do something about alternate educational arrangements did the mother then enrol the child in distance education from July 2018.  Restricting the child from what she indicated she wanted (to go to school) was an act of the mother to prevent at least other persons at school assessing the child.  I regard the mother’s actions as a significant issue, adverse to the mother’s attitude to parenting, and as noted previously, only corrected by Court Order, which the mother resisted.

3. I find that the mother used the fry pan accident and a small bruise, as a basis for maintaining her intention to prevent X spending time with the father.  The mother’s belief that both the Police and Department were wrong in their conclusions is a pattern of behaviour revealed by the mother from the earlier investigations in 2015; the J Shopping Centre incident and her general view that the authorities were not, as they should, accepting her child’s expressed feelings and statements (as well as the mother’s).  The Magistrate’s assessment of the mother is accepted.

Capacity to support a relationship with the other parent

1. Although I find that both parents:

   a)lack some insight into the effect of the unrelenting parental conflict on X;

   b)fail to take full responsibility for their contribution to the conflict; and

   c)hold entrenched views of a negative character about the other parent;

   in my view, the father demonstrates, on my assessment, some capacity to support the child’s future relationship with the mother whilst the mother shows no capacity to genuinely support the child’s relationship with the father.  My reasons for so finding are:

   d)I find that the mother’s view of the father has been shared with the child, but the comments of the child do not suggest the father has done so.  He says he was not doing so and I accept his evidence;

   e)the mother cannot modify her views – even it seems after three years of equal time arrangements (to April 2018) and when the opportunity arises, raises general issues or old issues.  She asserted the father has continually abused and tortured the child and has fired a gun at her (which occurred by discharging a weapon some 10 years ago, but without evidence which I accept of any intention to harm the mother).  When under pressure to explain her fears and to provide context to what the child has expressed SINCE April 2018 (but on the evidence not for the three years before then), she launches into historical character attacks on the father.  Her comments to B Group in April 2019 are to point;

   f)I accept the father made to authorities, in text messages to the mother, and whilst under cross-examination, some hurtful remarks about the mother.  Although some of the text messages may have been provoked, nonetheless his responses were entirely inappropriate and certainly come within the wider definition of family violence.  However, I agree with the submission of Mr Pack, Counsel for the father, that the father’s actions post April 2018 should be seen in the context of the mother’s unjustified behaviour (at least from 29 June 2018) to not comply with the equal time order;

   g)The mother did herself little credit, under questioning, to indicate that she felt she had no obligation to do anything to support X spending time with the father.  She uses the child’s wishes (which I am satisfied she shaped by exposing the child to her beliefs and fears) as a shield from attack.  She used the regrettable delays in the Court system to further lengthen the period of no contact.  She failed to agree to the child spending time at an alternate contact centre to B Group, but now on her submissions adopts that alternative.  Whilst costs might have been a factor, on my assessment the major factor was to continue to ensure the child did not spend time with the father.  I find, in this environment (especially when coupled with her decision to “home school” for over 12 months), the child got no balance in parental views or more widely, and simply (as Ms H described the child’s capacity) X “goes with the flow”.  The flow for two years nearly has all been one way.

2. I find that the father, when he begins spending more time with X again, will be able to see the benefit for X (for her long term development, identify and sense of self) of resuming a functional relationship with her mother.  He will be assisted by personal counselling/therapy to distinguish between his feelings of hurt and anger about the mother and her actions towards him, and the best interests of X.

3. I have little confidence that the mother will be able to do so – even with significant therapy – however because she does love her child so deeply, I am hopeful (which is different than confident) that the mother will see the orders today as a “wake up” call and regard the orders as an opportunity to take stock of her attitude.

4. The conclusion is supported by the submissions and orders proposed by the ICL and, perhaps, less enthusiastically by the father.  The conclusions as to the capacity to facilitate time by both parents is also consistent with the evidence of the Family Consultant, Ms A, although Ms A correctly noted much depended on findings the Court made about the April incidents and the general allegations of abuse made by the mother against the father.

5. I now intend to consider the respective competing proposals within the matrix of the relevant primary and additional considerations under s 630CC(2) and s 60CC(3) of the Act.

Primary considerations

1. I rely upon my earlier findings to demonstrate my concerns that if the child remains in the primary care of the mother, there is little likelihood that she will have a relationship with her father.  I find that the mother’s conduct amounts to exposing the child to psychological or emotional abuse.  I do not find that the child is at risk of physical, sexual, psychological or emotional abuse or harm in the care of the father.

2. This finding, of course, is made under s 60CC(2)(b), and must be given greater weight than the primary consideration prescribed by s 60CC(2)(a) to consider the benefit to the child of having a meaningful relationship with the parents.  In that regard, I find, contrary to the mother’s firm beliefs, that the child will benefit from a meaningful relationship with the father.  I also find that, although the child will benefit from a meaningful relationship with the mother, that should not be at the expense of no relationship with the father.  I assess, if the mother demonstrates a capacity to reframe and modify genuinely her beliefs and parental attitude, in time the relationship between the child and the mother can again resume – and can, if on a different basis, have every prospect of again being meaningful to the child.

Additional considerations

1. The child’s expressed wishes, since the events of April 2018, have been clear, unequivocal and consistent.  She says at least to her mother, to the Police, to the Department and to the school chaplain in effect that she fears her father; is scared of him and does not want to spend time with him.  These feelings and views were most recently reaffirmed in therapy sessions with Ms H (see Exhibit 1).  These wishes expressed by nearly 11 year old X are not ignored or simply disregarded.  They weigh heavily on the Court’s mind.  They represent the mother’s basic foundation for what she seeks the Court to do – namely to restrict or deny completely the child spending time with the father.

2. However as both common sense and a long line of authority dictates, the Court is not bound to merely except and adopt any expressed views of a child.  Naturally, the older a child is, more weight is attached to those views in most cases.  However, even that simple proposition is shaped by whether, and in what context, the child’s wishes are expressed and to whom.  In this case, on all the evidence and starting from an assessment I have made that at 20 April 2018 X’s relationship with the father was very good and functional, I find that the views expressed by the child have been shaped by a combination of:

   a)there being no time spent between the father and X since 20 April 2018;

   b)the mother, sharing with the child either overtly or less so, her anxiety about the father and her view that the “frying pan” incident was a deliberate act of abuse by the father towards the child.  In this respect, I accept the evidence of the father that after the incident occurred he did apologise to the child for the accident, which he caused by bringing the hot fry pan towards the child, whilst she was sitting on the “tailgate” waiting for her cooked bacon and eggs.  The father says the burn was superficial in nature.  He says the child, in response to his obvious concerns about his accidental actions, dismissed them - expressing to him it was nothing to worry about.  In my view, on the evidence, the mother when she first heard of the accident on 6 April 2018 (and although she took a photo of the “scar”), thought little of it.  There is no reliable evidence the child said to the mother on 6 April 2018 that she thought the father’s actions were an intentional and deliberate act of abuse on her.  I am satisfied that if the child had said initially the action was deliberate, there is no way the mother would have returned the child to the father on 13 April 2018;

   c)it is hard to think of a more painful experience for a child than to be “deliberately” assaulted with a burning hot fry pan.  There is no probative evidence about the father even making the child a subject of what the mother claims to be “torture” or aggressive abuse.  As a result, using the happy camp fire event to harm the child in this way – allegedly because the child’s dog scratched a canoe – is not likely.  Furthermore, to do so where the child was left with a “scar” – so visible and obvious to a hyper-vigilant mother like the mother in this case – was only likely to cause a reaction.  Yet no reaction by the mother occurred until 20 April 2018;

   d)I find, most likely through continual discussions between the mother and the child (which I cannot find on the evidence as “coaching”) and where the child’s version of events changed; became more exaggerated and, in respect of the “toilet paper” incident, frankly made up – the child has likely begun to believe something wrong happened, when it did not.  The continued changes in the version given to, for example, the Police in the s 93A interview on 28 April 2018 and to the school chaplain on 8 May 2018 (some 10 days later), where the child for the first time reports during the “toilet paper” incident the father said he was going “to kill you”, is a concern, and in my assessment suggests strongly that the child was making it up.  I find it more likely than not that after the QPS informed the mother on 4 May 2018 that they were not going to prosecute the father, further discussions with the child occurred.

3. I assess that at least by the time the child was withdrawn from school by the mother (in early July 2018 – just three months after the “frying pain” incident), the child, from her perspective, did not expect to spend time with her father.  By the time the child spoke to the report writer Ms A in January 2019, and more so by the time therapy began in October 2019, the child’s expressions of not wishing to spend time with the father were entrenched and repeated with intensity.

4. I assess this child, so heavily by this time reliant upon the mother for her physical and emotional support, was not able to express a view contrary to what she knew her mother wanted – namely that the child spend no time with her father.

5. For these reasons, I am not able to attach any weight to the views expressed by the child.  Of course, for the reasons earlier given, that the mother was able to develop in the child’s mind such a negative view of the father so quickly (and after the child happily enjoyed an equal time arrangement for nearly three years), demonstrates, in my assessment, the level of psychological abuse the mother was prepared to make her child suffer.  This assessment is supported by the Family Consultant Ms A – if I found (as I do) the incidents in early April 2018 did not occur or were accidental.

6. I now turn to the other relevant additional considerations, albeit succinctly:

   a)Although the child’s relationship with the mother at the time of the hearing was exclusive, it was not healthy.  The child’s relationship with the father, because of her alignment with the mother, was severed – but in my assessment not without the capacity for reunification, given the right circumstances;

   b)The history shows how the mother (despite a final order for equal shared parental responsibility) unilaterally made decisions from April 2018 and did not facilitate or encourage the father to participate in making decisions or spend time with X;

   c)There are no practical difficulties in the arrangements I propose to make as the parents both live in the C Town region;

   d)I rely upon earlier findings made as to the parental attitude and capacity.  For completeness, the father demonstrated his capacity to parent in at least the three year period prior to April 2018.  He is devoted to his daughter and only his persistence (at great personal and financial cost to him) to pursue this litigation to the end, has allowed the Court to make the orders it now does.  That is a clear example of his commitment to X.  Ms A found the father a capable parent – although she was not comfortable with observing the father with the child during family report interviews for the reasons she expressed under cross-examination.

   e)There are now, as a result of the Magistrate’s decision, no current domestic violence orders.  However, as Ms A properly opined, even historical events of family violence (going back 10 years) can impact on a person, and the mother presented as such a person.  I do not ignore the conviction of the father of two breaches of the Domestic Violence Orders relating to text messages.  I accept that the mother may, as she deposes to, feel uncomfortable around the father.  I do not find her feelings and anxieties are not genuine from her perspective, however she has denied herself the opportunity for better personal functioning, by not seeking out targeted therapy to help her deal with the increasingly strong relationship that has developed between X and her father.  I feel that when the father said to the mother in September 2017 he was “going for full custody”, the mother felt that her relationship with her daughter was under threat.  Sadly, it was not.  What has now put the relationship “under threat”, in my view, is the mother’s own actions and behaviour;

   f)Whilst I accept it would be preferable to make a final order, as that order would be “least likely to lead to the institution of further proceedings in relation to the child”, for the reasons given I am not satisfied it is in the best interests of the child to make an order which, on a final basis, restricts X to limited supervised or no time with the parent she does not live with.  For those reasons, I proposed to all Counsel and the final submissions of all Counsel adopted, an approach where having decided where the child shall live, the Court should only make interim orders as to the arrangements for the child’s time with the other parent.  The uncertainties in how the child might respond to the various proposals contended for by the parents, compelled the approach articulated by the Court.

Parental responsibility

1. The presumption of equal shared parental responsibility, on the evidence in this case, should not be applied as it is contrary to the best interests of X.  Counsel for the ICL Mr George and Counsel for the father Mr Pack submitted that the child should live with the father and he should have sole parental responsibility.  Counsel for the mother Ms Lyons conceded it was in the best interests of X for the parent who had the child residing with them (and on the mother’s proposal that would be the mother), to have sole parental responsibility.  I agree.

Form of orders

1. The real difference in the forms of final/interim orders contended for by the parties were:

   a)The ICL, supported by the father, contended for an immediate change of residence from the mother to the father; for a moratorium of six months where no time shall occur between the child and the mother and then either supervised time shall commence or the matter be revisited.  The attraction in proceedings with interim orders is that the ICL can be retained in the matter;

   b)The mother’s proposals offered a more “cautious” approach, indicating that the therapy that has begun with Ms H should continue towards encouraging the child to re-engage with the father and for the child to spend time with the father, supervised at F Group (at the father’s cost) for up to two hours each alternate weekend.  The mother’s primary proposal (with all final proposals collectively marked as Exhibit 16), did not include any provision for how long term supervised contact would change – other than a notation that “the parties will increase the child’s time in consultation with the child’s treating psychologist”.  In my view, there is no likelihood that the mother will be able to consider any extension of the child’s time with the father.

1. Sadly, but in X’s best interests, I am satisfied an immediate change of primary care is required to protect the child from further psychological harm from her mother.

2. I say “sadly” as I expect such a change now occurring, will be a shock to X and cause her significant distress.  The orders which I pronounce today seek, through the immediate assistance of a Family Consultant and the continued support of Ms H, to minimise the initial pain for X – however I accept that such drastic actions should only be contemplated if, in effect, the hopefully short term pain, leads to long term “gain” for X.  I believe that is the situation.

3. It is my hope, that the actions which the Court takes will lead to this mother - a mother who deeply loves her daughter – to reframe her attitude and behaviour.

4. This little girl deserves to have both her parents in her life as her journey through life continues.  If this action were not taken now, I am satisfied that the child’s important and necessary relationship with the father was likely to be completely severed.

5. I believe that the orders now pronounced, and which appear at the commencement of these Reasons, do provide a real opportunity in the long term for X to have a meaningful relationship with both parents, which is in her best interests.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 6 March 2020.

Associate:

Date:  6 March 2020