TAMAROVIC & GILLARD
[2014] FamCA 532
•11 July 2014 Reasons delivered 17 July 2014
FAMILY COURT OF AUSTRALIA
| TAMAROVIC & GILLARD | [2014] FamCA 532 |
| FAMILY LAW – CHILDREN – with whom the child lives – where the child has been living predominantly with the mother since separation - where the child suffers from developmental delay – where child purportedly suffers from post-traumatic stress disorder– where child has had limited supervised contact with the father – where father has remarried – where mother accuses father of physically and sexually abusing the child – where mother asserts that father is unacceptable risk to the child – where mother claims child’s behaviour is frequently uncontrollable – where third parties do not agree – where mother asserts that child behaves in a sexualised manner – where third parties do not accept this –where mother claims that child is fearful of the father - where father claims that child’s fear is a product of the mother - where father asserts that mother is unacceptable risk of emotionally harming the child – where the Department and the Police have determined not to investigate the father – where child is ordered to live with father. |
Family Law Act 1975 ss 60B, 60CA, 60CC, 61DA, 64B, 65D, 65AA, 65DAB
| Vigano & Desmond [2012] FamCAFC 79 |
| APPLICANT: | Mr Tamarovic |
| RESPONDENT: | Ms Gillard |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | BRC | 10806 | of | 2009 |
| DATE DELIVERED: | 11 July 2014 Reasons delivered 17 July 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 19, 20, 21, 22, 23, 27, 30 May 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Oakley |
| SOLICITOR FOR THE APPLICANT: | Hoftstee Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr O’Meara by way of direct access pro bono engagement on all days other than 23 May 2014 |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Glenday |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER
All parenting plans and previous parenting orders are discharged.
The child B born … 2005 (“the child”) live with the father from 10.00 am Saturday 12 July 2014.
The mother shall deliver the child to C Contact Centre, Suburb D at 10.00 am on 12 July 2014.
The mother shall ensure that the child is able to take some personal possessions and clothing, all school uniforms, all school books and any educational items with her when she moves to live with the father.
The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the father shall, prior to making a decision about any such issue:
(a)inform the mother in writing of the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the mother fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and
(c)consider the mother’s response, if any, when coming to his decision about any such issue; and
(d)inform the mother of the final decision he has made with respect to that issue as soon as practicable thereafter.
The father shall have sole responsibility for making decisions about the child’s day to day care, welfare and development whilst she is in his care.
The mother shall have the sole responsibility for making decisions about the child’s day to day care welfare and development whilst she is in her care.
The child shall spend time with the mother at all reasonable times as may be agreed between the parties in writing and, failing agreement, as follows:
(a)from Saturday, 26 July 2014 until the commencement of Term 1 in 2015: supervised at [C Contact Centre, Suburb D] each Saturday from 10.00 am until 2.00 pm or, in the event that the Contact Centre cannot accommodate weekly time, then for two hours each alternate weekend at such times as the Centre can make available to the parties; and
(b)thereafter:
(i)from 3.00 pm Friday to 9.00 am Monday each alternate weekend with the mother to collect the child from school at the commencement of such time and return her to school at the conclusion of such time and such time to be suspended during each school holiday period;
(ii)for the first half of each school holiday period in even numbered years and for the second half of each school holiday period in odd numbered years.
(iii)in the event the child would not otherwise be spending time with the mother on the weekend on which Mother’s Day falls, the child shall spend additional time with the mother from 6:30 pm Friday to 9.00 am Monday that weekend.
(iv)for the first half of the Easter celebratory days in even numbered years and for the second half of the Easter celebratory days in odd numbered years.
From the commencement of Term 1 in 2015, the child shall spend time with each parent as follows:
(a)from noon Christmas Eve until noon Boxing Day with the mother in odd numbered years and with the father in even numbered years;
(b)from noon Boxing Day until noon 27 December with the mother in even numbered years and with the father in odd numbered years.
Unless otherwise agreed, changeovers that do not occur at school shall occur at a public place as agreed between the parties in writing or, failing agreement, at [C Contact Centre, Suburb D].
In the event that [C Contact Centre, Suburb D] is unable to continue to supervise the child’s time with the mother:
(a)the mother shall provide the father with a list of three (3) other Contact Centres available to supervise the time; and
(b)the father shall select a Contact Centre from the list provided and notify the mother of his selection within seven days of the provision of the list; and
(c)each party shall, within seven (7) days of the date on which the father notifies the mother of the selected Contact Centre, arrange to attend the first available intake session at that Centre and do all things necessary to ensure that the child’s time with the mother at that Centre commences as soon as possible.
The father shall pay any costs associated with a Contact Centre’s supervision of the child’s time with the mother.
Unless otherwise agreed between the parties in writing, from 26 July 2014 onward, the child shall communicate with the mother by telephone between 6.00 pm and 6.30 pm each Tuesday and to facilitate this communication:
(a) the mother shall initiate the telephone call to the child; and
(b)the father shall ensure the child is available to receive the telephone call.
In the period from 26 July 2014 until the commencement of Term 1 in 2015, the father has liberty to terminate any telephone call between the mother and the child if the child becomes distressed.
The time the child shall spend with the mother pursuant to Clause 8(b)(i) shall recommence:
(a)on the first weekend after school recommences for any Term in even numbered years; and
(b)on the second weekend after school recommences for any Term in even numbered years.
In the event the implementation of Clause 8(b)(i) of this order would see the child spending time with the mother on the weekend during which Father’s Day occurs, the operation of Clause 8(b)(i) is suspended for that weekend so the child remains in the father’s care on that weekend.
During any period when the child is spending time with the mother, the child shall communicate with the father by telephone in the period from 6.00 pm to 6:30 pm each Tuesday and to facilitate this communication:
(a) the father shall initiate the telephone call to the child; and
(b)the mother shall ensure the child is available to receive the telephone call.
The father shall maintain the child’s enrolment and attendance at the E School until at least the conclusion of Term 3 in 2014.
Until the commencement of Term 1 in 2015 the mother is restrained and an injunction shall issue resisting her from attending at the child’s school during school hours.
During the times the child is in their care, the parties shall not:
(a)engage in any acts of verbal or physical violence or perpetuate any violence on the other party in the presence of the child;
(b) denigrate the other party in the presence of the child;
(c)denigrate each other or the child’s extended family in the presence of the child;
(d)consume alcohol to excess or illegal drugs.
Each party shall immediately notify the other of any medical emergency relating to the child and shall provide all details and information necessary to enable the other party to attend upon the child forthwith.
The parties shall:
(a) keep each other informed at all times as to the suburb which they reside;
(b)keep each other informed at all times of a mobile telephone number on which they can be contacted;
(c)keep each other informed at all times of the names and addresses of any treating medical practitioners or other health care practitioners upon whom the child attends;
(d)inform each other as soon as reasonably practicable about any significant injury suffered by the child or significant illness which necessitates her receiving medical or hospital attention;
(e)keep each other informed at all times of the names and addresses of any educational or child care institution or facility at which the child attends.
By this Order, any medical practitioner, health care practitioner or hospital upon whom the child attends is hereby authorised to provide to each party, at that party’s request and cost, all such information that such medical practitioner, health care practitioner or hospital may lawfully provide about the child.
By this Order, any educational or childcare institution or facility at which the child attends is hereby authorised to provide to each party, at that party’s request and cost, all information about the child’s education, progress and participation in school or childcare related activities.
The parties shall communicate about significant issues relating to the child via email and shall ensure that each has an operative email address, the details of which are to be provided to the other within seven (7) days of the making of this Order.
The parties have liberty to provide a copy of the Reasons for Judgment to any therapist upon whom they or the child attend.
The Independent Children’s Lawyer shall be discharged at the conclusion of Term 1 in 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tamarovic & Gillard 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 BRISBANE |
FILE NUMBER: BRC 10806 of 2009
| Mr Tamarovic |
Applicant
And
| Ms Gillard |
Respondent
REASONS FOR JUDGMENT
The parties met in 2001 and married in 2002. The child B was born in 2005. The child’s parents separated in about December 2008 when she was about 3½ years of age. After separation, the child remained living primarily with the mother. The child and the mother continue to live with the maternal grandmother (the grandmother) in Suburb E.
Between separation and early 2011, the child spent unsupervised alternate weekend and holiday time with the father.
The father met his current wife Ms Tamarovic in 2011. They started to live together in 2011 and married in 2011. Ms Tamarovic has two children from a previous marriage: F, born in 2005 (8 years), and G, born in 2010 (3 years). These children live with their mother and the father at Suburb H and spend regular time with their biological father. Their care arrangements have been negotiated between their biological parents without the necessity of judicial determination.
The father and Ms Tamarovic have recently had a child: J, born in 2014. B has spent time with J, F and G on occasions at the Suburb K and Suburb L Contact Centre (the Centre) where, until recently, she has consistently seen the father since late 2012.
B’s time with the father: December 2008 – mid-August 2011
From separation until about mid-August 2011, the child spent no less than each alternate weekend – from Thursday afternoon until Monday on occasion – and half school holiday time with the father. This happened by agreement and without legal proceedings or Court intervention.
Whilst there may well have been some issues between the parties and difficulties in communication during this time, these did not prevent them from implementing this agreed shared parenting regime.
Despite the assertions about the father’s allegedly violent and abusive behaviour during the relationship, as contained in the mother’s affidavit material and conveyed to various authorities since mid-2011, no complaint was made about his behaviour to the Police or the Department of Communities Child Safety and Disability Services (the Department) during their marriage or at separation. Given that the child spent unsupervised time with the father from separation until mid-2011, I conclude the mother did not consider his behaviours during their marriage – whatever they were - to mean the child was at risk during her unsupervised time with him in this period.
The conclusion that the parents engaged in a relatively co-operative co-parenting regime from separation until about mid-2011 is strengthened when regard is had to text messages between the parties in mid-June 2011. These reveal they were, at that time, able to communicate about matters such as the child’s time with each during the upcoming school holiday period: the mother asked the father to provide dates he intended to have the child and also asked him to care for her on 11 July 2011 (a pupil free day) as she had to work.[1] I am confident in concluding the mother would not have sought to arrange for the child to spend additional time with the father if she thought he posed a risk to her.
[1]Father’s affidavit filed 1 November 2013, Annexure “DT7”.
B’s time with the father since mid-August 2011
B last spent unsupervised time with the father in mid-August 2011. The parties differ as to the reason for this:
a)the mother says this happened because the child made disclosures the father had physically and sexually abused her;
b)the father says this happened because, after he told the mother in late June 2011 his relationship with his now wife Ms Tamarovic, was “serious”, the relatively co-operative co-parenting relationship between the parties changed and allegations of improper, inappropriate and abusive behaviour began.
The proposals
When the proceedings commenced in September 2012, the father proposed the child live with him and, in addition to twice weekly telephone communications, spend time with the mother each alternate weekend (from after school Friday to before school Monday morning) and for half of all school holiday periods.
Until trial, the father’s position was that such an arrangement was in the child’s best interests because of the harmful impact on her emotional well-being – through exposure to the mother’s asserted unpredictability and alienating behaviours toward him - if she remained living primarily with the mother.
At the commencement of the trial, Counsel for the father outlined he sought orders in terms broadly consistent with those recommended by Ms M, a social worker with significant experience in the field of child protection, in her May 2014 Family Report. To the extent that such recommendations favour the imposition of supervision over the mother’s time with the child, this is consistent with the father’s proposal as contained in his November 2013 affidavit.[2]
[2] Father’s affidavit filed 1 November 2013, paragraph 112.
The Orders sought by the father are that:
a)B live with him;
a)B’s time with the mother is supervised for no less than 12 months until the mother has a psychological assessment to determine her functioning and parental capacity - the result of such investigation will determine the manner in which the child’s time with the mother occurs after that;
b)B have monitored telephone communications with the mother; and
c)the mother have a psychiatric evaluation and engage in weekly mental health counselling and, depending on her progress, her time with the child be reviewed after 12 months.
The mother proposes the child continue to live primarily with her. Her proposals for other Orders depend on the Court’s assessment about whether the father presents an unacceptable risk to the child:
a)if the Court determines the father does not present an unacceptable risk to the child, then, the parties should have equal shared parental responsibility for her and her time with the father should increase in a graduated manner, namely:
i)for two visits from 10.00 am to 5.00 pm on Saturday, weekly; then
ii)overnight Friday or Saturday for the next two visits; then
iii)overnight Friday to Sunday for the next four weekends; then
iv)overnight from Friday to Monday fortnightly and for half school holidays.
b)if the Court determines the father presents an unacceptable risk to the child, then, the mother should have sole parental responsibility for her and her time with the father should be supervised indefinitely.
The mother does not resile from her asserted view the father has physically and sexually abused the child. Her proposal that the child spend unsupervised time with him if the Court decides he does not present an unacceptable risk to her rests on her evidence that she will be able to implement such an order because, if this is the outcome, she will feel she has done all that she can as a parent.
As I ultimately understood it, the Independent Children’s Lawyer submitted the Court should conclude that:
a)B is not at an unacceptable risk of harm of emotional, physical or sexual abuse if she spends unsupervised time with the father;
b)B is at risk of emotional and, arguably, physical harm while in the mother’s care but such risk is not unacceptable;
c)it is in the child’s best interests to live primarily with the father and, after a moratorium of approximately two weeks, spend time with the mother each alternate weekend from 3:00 pm Friday until 9:00 am Monday and for half of the school holidays;
d)the mother should undertake psychological assessment and counselling directed to particular risks as identified by the Court;
e)the parties, the child and the grandmother should participate in therapeutic counselling; and
f)the presumption of equal shared parental responsibility is rebutted in the child’s best interests and the father should have sole parental responsibility for her.
The Independent Children’s Lawyer’s position reflects some, but not all, of the recommendations made by Ms M in the May 2014 Family Report. These recommendations – which include that the child live with the father – differ significantly from those contained in Ms M’s August 2013 Family Report. There, Ms M recommended the child continue to live with the mother and spend increasing, unsupervised time with the father.
The reason for this very significant change in Ms M’s recommendations will become apparent.
Principles
In these proceedings, being proceedings for a parenting order (section 64B of the Family Law Act 1975 (Cth) (the Act)) in relation to the child, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Act, make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration: s 60CA and s 65AA of the Act.
I must consider whether there is benefit to the child of a meaningful relationship with both parents: an affirmative finding does not, of course, depend simply on there being a lack of danger of physical or psychological harm to her arising from time and/or communication with that parent.[3]
[3]Vigano & Desmond [2012] FamCAFC 79, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
From separation until mid-August 2011, the mother clearly held the view the child would benefit from the opportunity to spend time and continue to develop a meaningful relationship with the father. So much can be concluded from her voluntary implementation of a regime which saw the child spend unsupervised alternate weekend and holiday time with him.
I accept the evidence from the Centre about the father’s interactions with the child during supervised visits. She has clearly enjoyed spending time with him and he has interacted with her in a child-focused, respectful, caring, attentive and loving manner. Given this, I have no doubt in concluding that, subject to satisfaction that spending time with him on an unsupervised basis would not expose her to an unacceptable risk of physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, the child will benefit from the ongoing opportunity to continue to develop and maintain a meaningful relationship with the father.
I did not understand the father to suggest that the child would not benefit from the opportunity to continue to develop and maintain a meaningful relationship with the mother provided that such opportunity occurred in a manner designed to protect her from the unacceptable risk of psychological harm to which he asserts she is exposed whilst in the mother’s care. I conclude that, subject to satisfaction that spending time with the mother on an unsupervised basis would not expose the child to an unacceptable risk of physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, she will benefit from the ongoing opportunity to continue to develop and maintain a meaningful relationship with the mother.
Each parent’s case now involves assertions that the child is at an unacceptable risk of harm if she spends unsupervised time with the other. Thus, I must consider whether the established benefit to the child in having a meaningful relationship with each parent needs to give way to the imperative of protecting her from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence in their respective care.
It is clear the father’s primary case – in which the child would move to live with him, his wife and her children and spend supervised time with the mother –would involve significant upheaval and change for the child. The implementation of such a proposal would remove the child from the primary care of the parent who has primarily cared for her since birth: the parent whom both parents agreed – or at least accepted – at separation was the ‘appropriate’ care provider.
The father’s proposal would also see the child move from being the only child in her mother’s household to being one of four children (on occasions) in the father’s household. It would see her opportunity to spend time with the grandmother – with whom she has lived for a significant period of time – significantly diminished. It would also see her be required to transition from her current school to a new school – even if not immediately – and deal with and manage the likely losses and challenges associated with such a change.
The significance of the impact on the child of the father’s proposal was openly acknowledged by his Counsel: she submitted the risk for the child’s emotional, physical and psychological well-being of exposure to the continued primary parenting by the mother is so significant that the likely adverse consequences and impacts of the changes inherent in the father’s proposal are outweighed by the benefits for the child of being protected from the same and receiving her primary care from the father.
It is, I think, logical that I first determine whether the child is at an unacceptable risk of harm if she spends unsupervised time with the father: given the nature of the allegations of abuse, if I reach a conclusion that she is, the father’s case that it is the child’s best interests to live primarily with him cannot succeed.
In undertaking this exercise, I, of course, immediately acknowledge that the resolution of allegations of sexual abuse is “subservient and ancillary” to this Court’s determination of that parenting order which is in the child’s best interests.[4] However, a consideration of such allegations – and those asserting physical harm – is clearly necessary when the legislation imposes an imperative of protecting the child from harm.[5]
[4] M v M (1988) 166 CLR 69.
[5] Family Law Act 1975 (Cth) s 60CC(2)(b).
Is the child at an unacceptable risk of harm if she spends unsupervised time with the father?
The mother advances two bases on which the Court would be persuaded the child will be at an unacceptable risk of physical, emotional and psychological harm if she spends unsupervised time with the father:
a)because of the father’s alleged use of physical discipline; and
b)because the father has allegedly previously sexually abused the child.
A consideration of the issue is, I consider, best undertaken by carefully analysing:
a)the nature of the allegations;
b)the manner in which they came to light;
c)the circumstances which existed at the time they came to light;
d)the father’s response to the allegations; and
e)the relevant evidence of the expert witnesses called during the trial.
Such approach will also, importantly, identify that evidence which is relevant to an assessment of the father’s assertion that the child is at an unacceptable risk of psychological harm if she remains living primarily with the mother.
Given the relatively extensive evidence in this matter, I have determined the clearest way to set out the factual matrix, within which the determination of the orders which are in the child’s best interests is made, is by way of Annexure A to these Reasons. It is part of these Reasons and contains the facts as I have found them to be, together with an expression of some findings based on the same. Approaching the matter in this way permits easy reference to particular dates and events without the potentially confusing inclusion of significant detail within the narrative of my reasoning. A reference to a date is, therefore, to be read as a reference to the entry for that date in Annexure A.
Annexure A is not, however, to be read as the only part of the Judgment within which my findings of fact are recorded – where necessary, other findings, which will be apparent, may be found elsewhere in these Reasons.
The analysis referred to above and the overall consideration of the prescribed statutory considerations[6] must also, of course, take into account the reality of the child’s assessed functioning.
[6] s. 60CC Family Law Act.
B’s functioning
B started at Prep in January 2011. Whilst her academic results in English and Mathematics have consistently been lower than expected for her year level, her results in other key learning areas have spanned “sounds to highs”. She has mostly demonstrated a very good or excellent effort to learning.
It is relevant that, until about mid-July 2011, no-one had suggested the child displayed any particular behaviour as a consequence of spending time with the father.
In about early February 2012, the child was referred to her school’s Prevention, Intervention and Extension (PIE) Programme. Reports about her functioning at that time contain the observations that:
a)on occasions, her speech was very difficult to understand;
b)her facial expressions often did not match her words;
c)she would make comments like ‘I love you” when attempting to answer a question about a discussed topic;
d)she had difficulty understanding right from wrong;
e)she was very sensitive and became upset when another student was ‘mean’ to her (by, for example, telling her not to run on the concrete);
f)she had difficulty remembering things the class had practiced, rehearsed or repeated every day: for example, days of the week, months of the year and counting in 2s.[7]
[7] Exhibit 13.
On 3 May 2012, the school’s PIE Committee developed an action response for the child which saw her referred to a speech/language pathologist and the guidance officer for support. the child later received ongoing, intensive support for her identified learning needs in speech, literacy and numeracy.
In August 2012, a communication assessment identified that the child:
a)presented as a happy young girl who was easy to engage in the assessment tasks;
b)performed within the severely impaired range in relation to core language assessment – being basic knowledge of words, sentences and memory of spoken information;
c)performed in the severely impaired range for speaking;
d)had significant difficulties with narrative and conversational tasks;
e)was likely to have significant trouble organising spoken information for tasks like explaining and retelling events;
f)was likely to struggle with talking therapies;
g)had difficulties in finding words and often looked to the attendant speech therapist to “fill in the blanks”.
In October 2012, a further communication assessment identified, amongst other things, that the child:
a)had difficulty explaining what she had done the previous weekend;
b)demonstrated some difficulty understanding the meaning of words which had a number of possible meanings;
c)when asked to describe a particular thing, was only able to describe one or two attributes without support but could give more in depth answers with prompting;
d)had significant difficulty giving verbal explanations;
e)could not coherently or concisely connect several fragmented pieces of information.
During the October 2012 assessment, the mother told the clinician she frequently “fills in” in for the child or translates for her to other listeners, a matter the clinician noted the child appeared to rely on: see 5 October 2012 Annexure A. This has significant consequences for an analysis of the child’s reported comments to the mother and others.
I accept the findings of the various communications and speech pathology assessments of the child. In broad summary, these assessments make it clear she has consistently demonstrated difficulties in recounting events: she requires a lot of structure and support to sequence a recounting of an event (such as a weekend) correctly and produce the relevant information. That this remains the reality for the child is apparent from the reported difficulties in understanding her account of a difficulty at school in early 2013: see 19 February 2013, Annexure A.
These ongoing difficulties also provide context for a consideration of the child’s reports of past events to the mother and others and are clearly important given that the assertion the father poses an unacceptable risk to the child rests on an acceptance of the accuracy and veracity of the matters said:
a)by the child to the mother – as reported by the mother;
b)by the child to persons other than the mother.
It is clear that the child’s assessed developmental delays and difficulties with speech and language are matters which impact on the weight which can appropriately be accorded to her reported comments. It is also clear from the mother’s comments to the clinician in October 2012 that there is a very real possibility that the mother has ‘filled-in’ for the child when she has made reported ‘disclosures’ about the father’s alleged behaviour – especially when regard is had to the occasions when the child has said she does not remember what she was going to talk about or what she has to say: see 24 May 2012, 7 January 2013, Annexure A and the contents of the May 2014 Family Report.
The asserted Post Traumatic Stress Disorder
It is, I think, relevant to note that the Notice of Child Abuse, Family Violence or Risk of Family Violence filed on behalf of the mother on 30 November 2012 contains no allegations that the father was physically violent toward the mother or the child or in the child’s presence during the party’s relationship: rather, the allegations are restricted to comments the child is alleged to have made to the mother about the father’s alleged behaviour toward her after separation.
Despite this, the evidence reveals that both Ms N and Ms O, psychologists upon whom the child has attended, concluded that she suffers from Post Traumatic Stress Disorder (PTSD) as a consequence of exposure to domestic violence perpetrated by the father during the parties’ relationship – that is, on the mother’s account, from birth until she was about 3 ½ years of age.
I accept the evidence given by Dr EE about those necessary prerequisites to arriving at a diagnosis of PTSD. The evidence does not suggest that Ms N identified those matters necessary to be found as a basis for her diagnosis that the child suffers PTSD as a consequence of exposure to domestically violent behaviours allegedly perpetrated by the father. There is nothing in the evidence to persuade me she identified with sufficient particularity, via age-appropriate discussion with the child or discussion with the mother, the nature and extent of the trauma she purported to rely on in arriving at her diagnosis of PTSD.
B attended upon Ms N for the first time on 17 October 2011. Ms N was an entirely unsatisfactory witness. She initially failed to fully comply with a subpoena which required her to produce all of her notes in relation to her consultation and interaction with both the child and the mother, explaining in her early cross-examination that she did not consider these to be “relevant”.
After this matter was resolved, Ms N produced scant records detailing her interaction with the child and the counselling she provided and, during the cross-examination which followed her production of these scant records, admitted they (Exhibit 6) had been created by her after the direction that she produce documents to the Court.
I have concluded it is more likely than not that, when Ms N first informed the Court, on oath, she had not produced documents because she did not think them “relevant”, she was, in fact, attempting to disguise the absence of such records. That a psychologist, engaged in the provision of professional counselling services to members of the public, would fail to keep appropriate records and attempt deliberately to mislead the Court in relation to this failure, casts a heavy shadow over the entirety of her evidence, her professionalism and – very significantly – her judgement.
Further, Ms N’s apparent failure to keep contemporaneous notes of her counselling sessions with the child significantly diminishes the Court’s capacity to assess objectively the basis upon which she arrived at her purported diagnosis that the child suffers from PTSD.
For the reasons outlined above, the contents of the documents which are Exhibit 6 are Ms N’s asserted recollections (in May 2014) of sessions with the child from 15 December 2011 until 11 April 2012. She said her May 2012 report was the same as her November 2011 report – a copy of which she did not provide on the basis that she was unable to access it from her computer records.
Ms N said, and I accept, that it is her practice to forward to clients a copy of draft reports to permit them to correct factual errors. There is nothing to suggest she did not follow her usual course in this case. She did not produce a copy of the draft report forwarded to the mother by email nor did she produce a copy of the email communication to which such report would have been attached. In this circumstance, it was not possible for any party to ascertain, from a comparison of the draft document sent to the mother and the final report, what changes- if any- were made by the mother.
In these circumstances, I consider that Ms N’s report is an amalgam of her observations and matters conveyed to her by the mother. Her failure to keep proper records makes it impossible to ascertain with particularity those matters she concluded independently and those matters she adopted from the mother.
Despite undertaking no investigation or contact with either the school or the father, Ms N expressed the opinion in the May 2012 report that it was in the child’s best interests that any visits with the father in the foreseeable future occur in day time and under strict supervision so she does not go into an angry, hostile environment. I do not consider such expression to have a valid foundation and I propose to accord it no weight at all in the consideration of those orders which are in the child’s best interests.
During the initial interview on 17 January 2012, the mother told Ms O of “alleged sexual, physical and emotional abuse by father” until 2011 when contact ceased.[8] The first interview with the child occurred on 20 January 2012 and reference is made to that entry in Annexure A.[9]
[8]Exhibit 3B, page 232.
[9]Exhibit 3B, page 232.
Ms O telephoned Ms N on 25 January 2012. Ms N told her she had diagnosed the child with PTSD and dissociative amnesia.[10] A perusal of Ms N’s notes does not reveal any basis upon which she reached the latter purported diagnosis. She also said the child had disclosed to her, in session, that the “father has been mean to her” and recently reported he “threw her on the bed, dragged up the stairs” and she “could not get away”.[11] Her notes do not record any such disclosure.
[10] Exhibit 3B, page 232.
[11] Exhibit 3B, page 232.
Ms O saw the child for the second time on 2 February 2012. Her aim was to “continue to build rapport through non-directed play”.
On the morning of 6 February 2012, the mother telephoned Ms O to report the Principal told her the child was fine at school. However, the mother said the child got stomach cramps every day before school because she was so anxious. Ms O assured the mother “that therapist will advocate for the child with the school.”[12] This statement was made at a time when Ms O was yet to speak with the Principal or obtain any information from the school whatsoever.
[12] Exhibit 3B, page 225.
Having spoken with the Principal on 6 February 2012 Ms O determined to contact the school in the future if issues arose. However, she did not seem to place any weight on the Principal’s report of the child’s behaviour and interaction there, despite the fact that these were clearly completely at odds with the mother’s descriptions of the child’s behaviours. Further, there is no evidence she discussed with the mother why she thought that, when the child was reported to be happy and engaging at school, she was ‘faking’ it.
Ms O completed a “Consumer Assessment” in relation to the child on about 7 February 2012. Her notes of her interaction with the mother to this date do not contain any details of alleged domestic violence other than the broad summary initially recounted.
Despite this, she opined the child had a disrupted attachment “due to mother’s exposure to DV from the child’s conception to age 3.”[13] This assertion obviously comprises two parts: the first, an expression of expert opinion following the opportunity to observe the child and hear from the mother and the second, a conclusion as to causation which relies entirely on accepting – as true and accurate - the mother’s account of exposure to domestic violence from the time the child was born. Logically, it also contains an implicit acceptance that the alleged domestic violence was, to some extent, repeated and regular because it seems unlikely that a disrupted attachment would arise after, for example, an isolated event.
[13] Exhibit 3B, page 235.
The absence of any reference in Ms O’s notes to any inquiries or consideration of any other possible cause for the disturbed attachment she diagnosed suggests she did not consider any other possible explanation for this. For example, despite her knowledge that the grandmother had been allegedly diagnosed with Dissociative Identity Disorder, she seems not to have explored the possibility that the child’s reported behaviours may have had their genesis in matters or behaviours to which she was being exposed in the mother’s household.
Under the heading “Precipitating”, Ms O noted “exposure to DV father toward mother from conception to age 3, emotional unavailability of mother due to DV, stress and her own mental health issues, and suspected victim of sexual, emotional and physical abuse by father.[14] Ms O did not further identify the nature of the mother’s own mental health issues or how the mother’s emotional unavailability impacted on the child’s functioning. She did, however, note that the mother’s “lack of parenting skills to cope with the child’s emotional dysregulation” was a perpetuating risk factor for the child.[15] Given the mother’s reports of the child’s continued emotional dysregulation whilst in her care, this perpetuating risk factor has not diminished or been ameliorated despite the significant assistance the mother has received form a variety of sources to asset her in her management of the child.
[14] Exhibit 3B, page 237.
[15] Exhibit 3B, page 237.
Ms O concluded[16] the child was engaging in emotional abuse towards the mother and grandmother, had concentration difficulties, psychosomatic problems (such as nausea and vomiting), was a picky eater and was co-sleeping.
[16] Clinical and Risk Formulation/Assessment Summary, 7 February 2012.
On the basis of the mother’s information, Ms O was prepared to assert that the child had hyper-arousal and hyper-vigilance which made it difficult for her to concentrate and participate in school – matters completely disputed by the Principal and the school records. Ms O was also prepared to assert there was a “re-triggering of trauma when the child has indirect contact with father” – a conclusion which clearly rests on an assumption that the child was, in fact, previously exposed to trauma by the father.[17]
[17] Exhibit 3B, page 237.
Ms O also identified a number of “protective factors” for the child:
a)she had engaged with a therapist previously and exhibited settled behaviour at school;
b)the mother had the ability to regulate the child’s emotions at times – an assertion that appears to be at odds with her opinion that the mother’s lack of parenting skills to cope with the child’s dysregulated behaviour was a perpetuating risk factor;
c)she had a supportive school; and
d)there was a lack of contact with the father at that time.[18]
[18] Exhibit 3B, page 237.
Given the stage in her therapeutic engagement with the child and that the child had not made any comment to her to suggest she had experienced trauma in the father’s care, the inclusion of the lack of contact with the father as a protective factor is a further indicia of her complete acceptance of the mother’s account that the child had suffered trauma as a consequence of his behaviours.
Despite having seen the child on only two occasions - during which she made no disclosures of exposure to any trauma - Ms O diagnosed the child as suffering from PTSD on 7 February 2012. She did so without having identified the nature of the asserted trauma in any manner beyond an assertion of the existence of domestic violence in the household: she had not obtained any specific details about the alleged domestic violence, its severity, the nature it took, its frequency and duration or the frequency at which and duration for which the child was exposed to whatever form the alleged domestic violence took. These investigations only occurred much later: see Annexure A.
I consider it more likely than not that, in arriving at her ‘diagnosis’ in such circumstances, Ms O was highly influenced by the fact that the child’s previous psychologist – Ms N – had diagnosed PTSD. What she did not know – and what is apparent to me on the evidence – is that the Ms N’s diagnosis was flawed.
Ms O proceeded to conclude that the child suffered PTSD in the context of:
a)a family history of other mental and behavioural disorders;
b)problems related to alleged sexual abuse by a person within her primary support group;
c)problems related to alleged physical abuse;
d)having witnessed domestic violence; and
e)having suffered the loss of a love relationship in her childhood[19] - which, in the circumstances, can only be a reference to her loss of relationship with the father.
[19] Exhibit 3B, page 237.
It is clear that the diagnosis that the child suffered from PTSD was based upon the symptomology described by the mother.[20] It is also clear that little regard was, seemingly, paid to the school’s completely contrasting observations. Further, Ms O’s notes, reports and affidavits do not outline the reasoning which underpinned such a decision.
[20] Ms O’s affidavit filed by leave 21 May 2014, paragraph 3.
It was only after she arrived at her diagnosis that Ms O decided to undertake an ongoing assessment by obtaining collateral information from the child’s school. She sought to assist the child by engaging with the school in psychoeducation regarding trauma and its effects on children and its best management.
Ms O also expressed the opinion that until a full assessment of the child’s allegations had been made, it would be inappropriate for the father to have unsupervised “contact” with her or care for her overnight or for extended periods of time. She did so in circumstances where she had no interaction at all with the father. She also raised concern that the father may not be able adequately to provide the level of care the child required given her previous requirement for specialist care for her anxiety and PTSD.[21]
[21] Exhibit 12.
Given my conclusions about the diagnosis of PTSD, the father’s observed interactions with the child at the Centre and Ms M’s assessment as outlined in the Family Reports, I do not share in such concerns. I am well persuaded that the father is capable of assisting the child, via professional intervention if necessary, to deal with her anxiety and whatever other issues may arise for her as she matures toward adulthood.
Observed behaviour
B has been generally well behaved and well-mannered whilst at the Centre. She has sought permission from Centre staff before playing with provided toys and has responded obediently to direction. Apart from a few occasions on which he has had to remind the child not to throw sand at others, the father has not needed to make any comments to redirect her behaviour.
B has not displayed any uncontained behaviour or been seen to kick, yell, scream or be disobedient:
a)at her school;
b)during her interactions with speech therapists who have tested her at school;
c)at the Centre during visits with the father;
d)during her therapy session with both Ms N and Ms O;
e)during her interaction with Departmental officers and Police officers;
f)during her interaction with the ambulance officers who attended the mother’s home; or
g)during her interaction with Ms M, the author of the Family Reports, on a number of occasions.
However, according to the mother and grandmother, she has regularly exhibited uncontained behaviour whilst in their care. Both accept that the child relaxes and appears happy as soon as she enters the school grounds. Both explain the stark disconnect between the child’s behaviours in their care and her behaviours in all other settings as the result of her ‘dissociating’, pretending to be happy or putting on a mask of happiness as a protective measure.
I do not accept this as the likely explanation for the child’s behaviours in situations other than in the mother’s care. I consider it more likely than not that the child is simply happy and relaxed whilst at school and at the Centre spending time with the father.
It is concerning for her long-term functioning that the only place where her behaviours are unrestrained and suggestive of exposure to significant stressors is within her mother’s care.
Has the father physically abused the child and is there an unacceptable risk he will physically abuse her if she spends unsupervised time with him?
On the mother’s account, the first occasion the child said anything to her to give rise to a concern she had been inappropriately physically dealt with by the father arose on 17 August 2011: at the time the mother learned the child had slept over at Ms Tamarovic’s home the previous weekend.
As I understood the mother’s evidence, this was neither acceptable nor appropriate from her perspective because the father and Ms Tamarovic were not then married.
The mother’s account[22] of her conversation with the child on that occasion makes it clear that, after the child told her they did sleep overnight at Ms Tamarovic’s home, she made the child aware the father had said they did not. The child’s reported comments about the father’s behaviour toward her followed.
[22] Mother’s affidavit filed 4 November 2013, paragraph 71.
His asserted behaviour toward her may be summarised as follows:
a)he pushes her;
b)he is not allowed to hurt her anymore;
c)she was going to tell people he pushed, kicked and hit her;[23]
d)he hurt her hands so she could not move them, it hurt “real bad”: she told him not to hurt her and to let her go[24] (demonstrating that he twisted her wrists and pushed her hands backwards and pushed her chest);
e)he knocked her over and she fell to the ground (demonstrated by falling backwards onto her bottom);
f)he was angry with her, yelled at her and kicked her on her legs (demonstrated by touching her shins);
g)the father laughed at her and sometimes took his shoe off and threw it at her;
h)he had pushed her into his bedroom, shut the door and held the handle so she could not get out;
i)he told her she was being naughty, that she was not his family anymore, that he did not love her anymore and she had to leave his house and she was not coming back;
j)he got angry, never listened to her and smacked her hard which hurt;
[23]Mother's affidavit filed 4 November 2013, paragraph 71; Notice of Child Abuse, Family Violence or Risk of Family Violence filed 30 November 2012.
[24]Notice of Child Abuse, Family Violence or Risk of Family Violence filed 30 November 2012. paragraph 4.
B was asked whether the father was playing when any of these things happened and she said he wasn’t. When the mother asked her if the father did anything else, the child reportedly told her:
a)he dragged her along the floor by her foot when he was angry and yelled at her;
b)he dragged her up the stairs by her foot (so her head hit the stairs), put her in his bedroom and locked the door, went to the toilet and then dragged her down the bottom of the stairs again;
c)he wanted her to hit the wall with her fist;
d)he slapped her across the face and yelled at her.
The mother asserts that, when she asked the child if she had seen the father hit the wall with his fist, the child told her she had and that, a long time ago, when she was on the lounge in his old house, he hit the wall and it got a hole in it.
I think it reasonably clear from some of the child’s response to the questioning that she was describing ‘time-out’: a method of discipline the father readily accepted he used to manage the child’s behaviour when in his care. I accept it is highly likely that, on occasion, the father put the child in a corner and her room to discipline her. I also accept that it is highly likely the child did not like being placed in the room. I accept she may well have been scared but I am not persuaded that this was the father’s intention in following a well-known discipline technique.
I accept that it is highly likely the child may well have tried to get out of the room when in ‘time-out’ and that the father may well have held the door handle to prevent her from doing so. I am not persuaded, however, that such an action caused harm to the child.
I accept that it is highly likely that, on occasions after the child was put in the room by her father, she came out and he put her back into the room again. I accept, as highly likely, that on occasions the father may well have picked the child up to put her in the room when she was resistant to following an instruction to go there. He may well have pulled her by an arm or pushed her to get her into the room. I further accept, as highly likely, that on occasions the child may have screamed as the father attempted to implement time-out. I am not persuaded, however, that these actions caused harm to the child.
I further accept there may well have been occasions when, from the child’s perspective at least, the father yelled at her. There may well have been occasions when the child thought he was yelling at her when he, perhaps, was not: see 7 September 2012 where the mother reported the child complained she and the grandmother yelled at her when they were only speaking ‘normally.’
Whilst I accept it is highly likely that, during some of the time she was in his care on weekends and holidays after separation, the father told the child she was ‘naughty’, I am not persuaded it is likely that he told her she was not his family anymore or that he did not love her anymore or that she had to leave his house and she was not coming back. Such comments are completely contrary to the caring and child-focused parent I assess the father to be. He has demonstrated significant commitment to his relationship with the child and spoke of her and parenting in a considered and insightful manner during cross-examination. I think it highly unlikely he would ever knowingly or directly convey to the child any sentiment other than that he loves her unreservedly.
I accept the father’s evidence that he is likely to have kicked the child on the shins whilst playing football with her. I also accept that he may well have thrown a shoe close to where the child was but I am not persuaded it is likely he threw anything at the child with the intention of causing her harm. I accept the father may well have laughed on occasions in a manner the child might have interpreted as being ‘at’ her but I am not persuaded he is likely to have done so with the intention of hurting her – after all, the sensitivities of children can often be underestimated by adults and children can so easily misinterpret a laughing ‘with’ event as a laughing ‘at’ event. I am not persuaded, however, that these actions caused harm to the child of the kind or magnitude which would support a conclusion that she is at an unacceptable risk of harm in his unsupervised care.
I accept it is highly likely there may have been occasions where, in the course of play, the father pushed the child or she fell backwards or he grabbed her by the wrists. I am not persuaded that it is likely he did so with the intention of hurting her or in any manner other than in play.
Whilst there may well have been occasions on which the child felt like the father did not listen to her – and occasions when he did not, in fact, listen to her – such is the consequence of childhood: it could hardly be thought abusive for a parent to fail to listen to a child on an occasion. I am not persuaded that such an action caused harm to the child.
I accept the father’s account of playing a game with the child whereby she sat on a rug or blanket and he dragged her around the floor by holding her feet or ankles. This provides an explanation for the assertion in paragraph 86(a).
I do not accept it is likely the father wanted the child to hit the wall with her fist. The father denies ever acting toward the child in the manner outlined in paragraphs 86(b) and (d). I accept his denials. I am not persuaded the father ever dragged the child by her feet up and down the stairs so her head hit the stairs. Whilst he may, in implementing ‘timeout’ have put her into his bedroom, locked the door while he went to the toilet and then unlocked the door to release her, I am not persuaded he dragged her down the stairs. Similarly, I accept his denial of slapping the child across the face in a harmful manner.
B may well have told the mother during their conversation on 17 August 2011 that she was not going to the father’s home anymore, never wanted to talk to or see him again and did not want to live with him. However, it cannot be forgotten that the entire conversation occurred in circumstances where the child can only have been acutely aware that, in staying overnight with Ms Tamarovic, she (and the father) had done something with which the mother disapproved and/or disagreed. In such circumstances, I am certainly not persuaded to conclude that the child’s reported comments reflect a considered view of the father or that she had been hurt by him or was scared of him.
B has spoken of the father’s physical behaviour toward her on a number of occasions to persons other than the mother or grandmother:
a)to Ms N at some time before 25 January 2012;
b)to Ms O on 6 July 2012;
c)to Ms O on 9 October 2012;
d)to Ms O on 15 January 2013;
e)to Police on 27 January 2013;
f)to Departmental officers on 18 March 2013.
I accept the conclusions outlined by Police and the Department following their respective interviews with the child: see 27 January 2013 and 18 March 2013 Annexure A.
I do not accept that the father put tape over the child’s mouth, tied her hands together or tied her to a post on the staircase, particularly in circumstances where, despite numerous interactions with therapists, teachers, Departmental officers, police officers and medical practitioners, such allegations arose only in about March 2014 : see 3 March 2014, 26 March 2014, Annexure A.
I accept the accuracy of the observations of the child’s interaction with the father at the Centre. I accept that, when she saw him on 3 September 2012 – after having last seen him for substantial interaction in mid-August 2011 – she was excited to see him, interacted comfortably with him, was willing for him to play with her, regularly giggled and smiled, appeared comfortable being close to him and wanted a hug from him. Such behaviours are, I consider, unlikely to have been immediately demonstrated by the child if she had an internal fear of the father or truly believed he would hurt her.
My conclusion in this respect is bolstered by matters like the child’s:
a)consistent expressions of affection toward the father during visits at the Centre which have included saying she wants to ‘buy’ him with her pocket money and that she wants to hide so he has to stay longer to find her: see 16 February 2013, Annexure A;
b)recounting to Departmental officers in March 2013 that she did not remember being dragged up the stairs and did not have any marks as a result of being dragged up and down the stairs: see 18 March 2013, Annexure A;
c)repeated distress at the end of time with the father at the Centre: for example, see: 2 February 2013, 8 June 2013, Annexure A.
I do not accept it as likely that the child’s consistent warm interactions with the father at the Centre are manifestations of her ‘dissociating’ because of traumatic experiences with the father. I consider it more likely than not the mother and grandmother have relied on this expression as a way of explaining the stark contrast between their reported experiences of the child’s behaviour at home and her almost exemplary behaviour reported by the school, visiting therapists, the Centre, Ms N and Ms O - none of whom have reported the child to behave in the extreme manner reported by the mother and grandmother.
I do not accept that the father ever threatened the child that he would ‘take’ or kidnap her. I do not accept that he has ever attempted to do so. I consider it more likely than not that the mother developed a view – for whatever reason – that the father would take the child away from her and that, as he sought to have time with the child away from the Centre and prosecuted his case to have her live with him, this belief manifested itself as a ‘fear’ to which the child was exposed whilst in the mother’s care.
I am not persuaded that it is coincidental that the reports of the child expressing fear or demonstrating behaviours which might be seen as manifestations of fear of the father – such as checking windows at night and allegedly saying she wanted to move house and school – appear aligned with occasions when the father was persisting in his efforts to spend time with the child or have time move away from the Centre: see the chronology of events summarised in Annexure A.
I am certainly not persuaded that the child’s behaviours as reported by the mother and grandmother are in any way causally linked to her asserted fear of the father or of spending time with him outside the Centre (see: 1 February 2014, Annexure A) or of Ms Tamarovic.
I am confident in concluding, on the evidence before me, that the child will not be at risk of deliberate physical harm if she spends unsupervised time with the father. I use this terminology deliberately because there is always a risk to the child – whether spending time with the mother or the father – that she may suffer some unintended or accidental harm.
Has the father sexually abused the child and is there an unacceptable risk he will sexually abuse her if she spends unsupervised time with him?
Until the first report to the Department by the grandmother on 11 July 2011, no-one had suggested to any child protection authority that the child displayed any particular behaviour as a consequence of spending time with the father.
Whilst the Notice of Child Abuse, Family Violence or Risk of Family Violence filed on behalf of the mother on 30 November 2012 contains an account that, before separation, the father was charged with an offence because he had been seen masturbating whilst driving his vehicle through traffic, this behaviour was known to the mother before she agreed to and facilitated the child spending unsupervised time with the father.
The mother says that, in about mid-July 2011, the child started to behave in a “sexualised” manner and she thought ‘something’ was wrong with the child.[25] Despite this – and in the absence of any Order directing the same – the child continued to spend time with the father on alternate weekends.
[25] Mother’s affidavit filed 4 November 2013.
A conclusion that the child has been sexually abused by the father or is at risk of being sexually abused by him requires, in significant part, that the Court accept as accurate the reports by the mother and grandmother of the allegations they say she made. They are the first persons to whom the child allegedly made disclosures.
I have significant difficulty in accepting the mother and grandmother as truthful and/or accurate witnesses. I have arrived at this conclusion having regard to the occasions on which both have provided differing accounts or reports of matters to different authorities or people.
As the grandmother was the originator of the first report to the Department in July 2011, it is convenient to summarise some occasions on which she has provided differing and/or contradictory accounts – for example:
a)on 11 July 2011, she told the Department and Suburb K CYMHS significantly different accounts of the child’s alleged behaviour toward an adult female friend of the mother’s: see 11 July 2011 Annexure A ;
b)despite the details reported to Suburb K CYMHS on 11 July 2011, her affidavit filed 28 November 2012 does not contain any assertion that the child kissed anyone on the mouth;
c)the assertion that, as at July 2011, the child had been rude and pushed other children at school is contradicted by evidence from the Principal, Ms P, whose evidence I accept, that until about February 2013, the child had not acted at school in any manner which required disciplining;
d)on 12 December 2011, she told the Department the child had previously displayed physical behaviours which included ‘trying to strangle the mother which the father had done to the mother’: an assertion which does not appear in any of the mother’s affidavit material and which is completely contradicted by the mother’s account that the father had never been physically violent or abusive to her during their relationship: see: compare 12 December 2011, Annexure A with the mother’s report to Ms M and the mother’s report to the Department on 14 February 2013, Annexure A;
e)she told the Department on 20 November 2012 that the mother stopped the father’s contact with the child because there had been a ‘significant DV incident’ where the father assaulted the mother in front of the child –but, the mother said she stopped contact because of allegations of physical domestic violence by the father against the child and made no mention of any assault on her: see 26 August 2011 and 20 November 2012, Annexure A;
f)she told the Department on 20 November 2012 a doctor had recommended the child have a brain scan because it was suspected her behaviour and speech delay may be the result of an acquired brain injury in circumstances where there is no evidence to suggest either she or the mother took the child to a medical practitioner to be assessed for that purpose or of the child returning from time with her father with any injury of sufficient magnitude to cause an acquired brain injury: see 20 November 2012, Annexure A;
g)she told the Department on 28 November 2012 that the child had told Ms O that day “why should I tell anyone what daddy did when everyone thinks I’m a liar” – but, there is nothing in the therapist’s notes of her session with the child that day to substantiate this assertion: see 28 November 2012, Annexure A.
Similar difficulties arise in considering the weight to be accorded to the mother’s evidence when regard is had to some occasions on which she has provided differing and/or contradictory accounts – for example:
a)she told the father in a text sent on her behalf on 26 August 2011 that she had been informed ‘by Police and other parties about serious allegations relating to incidents of physical domestic violence’ by him against the child when that had not occurred: see 26 August 2011 and the entries which predate it in Annexure A;
b)she told the Centre during an Intake session on 25 November 2011 that the child had said the father touched between her legs but then withdrew the comment and would not discuss it – but, there is no mention in her affidavit material of this asserted event: see 25 November 2011, Annexure A;
c)she told the Centre during an Intake session on 25 November 2011 that the child had disclosed information including that the father ‘often looks at her vagina for no apparent reason’ - but, this assertion did not form part of her report to the Department on 19 October 2011 nor is it contained in her affidavit material: see 19 October 2011 and 25 November 2011, Annexure A;
d)she told the Centre during an Intake session on 25 November 2011 that the child had recently seen a child psychologist who spoke of her ‘dissociating’ during a session - but, there is no reference to this in Ms N’s notes: the only reference is where Ms N recounts the mother telling her she believed the child dissociated after creating a picture: see 25 November 2011, Annexure A;
e)she told Ms O in January 2012 that the father had signed a Domestic Violence Order which provided for no contact with her and the child – but, there is no evidence of this and the terms of the mutual Undertaking signed in September 2011 did not prevent the father from spending time with the child: see 16 September 2011 and 17 January 2011, Annexure A;
f)she told Ms O in January 2012 that the grandmother had intensive therapy for five years as a consequence of being diagnosed with Dissociative Identity Disorder - but, during cross-examination, explained that the ‘diagnosis’ came from a General Practitioner who treated the grandmother for possibly a year, maybe longer;
g)despite a specific entry in a school document requesting information about whether there was a family history of medical conditions or learning difficulties, the mother did not mention the grandmother’s diagnosis of Dissociative Identity Disorder or her own mental health issues (which were noted by Ms O): see 26 March 2012, Annexure A;
h)she asserted in an Application for a Domestic Violence Order made in about mid-May 2012 that the Principal of the child’s school called her on 16 April 2012 asking her to come to the school as soon as possible because the father had arrived to take the child without her permission – but, she told Ms O on 17 April 2012 (the day after the event itself) that the father went to the school and attempted to talk to the child: see 17 April 2012 and 18 May 2012, Annexure A;
i)she told the Centre during an Intake session on 6 August 2012 that the child had described to her what a “blow job” is - but, this assertion is not contained in her affidavit material, has not been reported to the Police or the Department, and was not mentioned by her to Ms N or Ms O: see 6 August 2012, Annexure A.;
j)she told Ms M in July 2013 that the child “punched a child in the face at school over an incident where she drew a picture of Cinderella and the kids were making fun of her”[26] – but, school records do not confirm this account: whilst the child was sent to Behaviour Reflection Opportunity (“BRO”) on 19 February 2013, this involved her hitting a child twice because she wouldn’t move away from her and there is no mention of a Cinderella picture;
k)when Ms M told the mother the child had told her she did not want to see the father on the July 2013 interview day, the mother said she had never expressed that to anyone before and it was good she had spoken up [27] - but, this does not seem to accord with the mother’s evidence that the child told a teacher in Prep she did not want to see the father;
l)she told Ms M, during interview in July 2013, that, after the parties separated, the father did not want the child to stay overnight and, in six months of having contact with him, she went from “a happy girl to an unpredictable mess”[28] – but, in the absence of a prescriptive Order, the mother continued to send the child to spend alternate weekend time and time during holiday periods with the father until August 2011.
[26] Paragraph 4.23 first Family Report.
[27] Paragraph 8.6 first Family Report.
[28] Paragraph 4.12 first Family Report.
Further, on 14 July 2011 the mother told the Suburb L Health Services District Community Health Service (Young People’s Health and Family Support Service) (“the YP’s Health Service”) that the child was displaying “very sexualised behaviours which began approximately one year ago.” There is no evidence to suggest that either the mother or the grandmother had previously acted to raise such asserted behaviours with any authority charged with the protection of children prior to 14 July 2011.
Given that the child’s school and Ms M both assessed the mother as a child focused and protective parent, it is perplexing - to say the least - that she failed to take any action in relation to what she described as “very sexualised behaviours” said to have begun in approximately July 2010. Further, I struggle to accept, as likely, that the mother did nothing in the face of her reported observations of “very sexualised behaviours” – exhibited for about 12 months – before mid-2011.
I find it highly unlikely that, if she truly believed the child exhibited “highly sexualised” behaviours for a 12 month period, the mother would have delayed in taking any action to address this or investigate potential causes for the same. I also find it highly unlikely that, if the child had in fact demonstrated highly sexualised behaviours for 12 months before July 2011 and the mother had any concern the father’s parenting was, in any way, responsible for this she would have continued to send the child to spend unsupervised time with him.
These conclusions cause me to doubt the veracity and accuracy of the information about the child’s behaviour provided by the mother to the YP’s Health Service on 14 July 2011. Of course, another possibility is that the child had not, in fact, started to display “very sexualised behaviours” in about July 2010 but, rather, the mother, for some reason, reported on 14 July 2011 that she had: the genesis of the disquieting possibility that the mother has, on her “best case”, been prepared to exaggerate or inaccurately report – or, on her “worst-case”, falsely report - details of the child’s behaviour to public authorities, occurs here.
As a result of the above, I am left with significant difficulties in accepting as accurate the information recounted by the mother and maternal grandmother when they recount the child’s alleged disclosures of sexual abuse by the father.
The allegations
As noted above, the child’s last unsupervised time with the father occurred on the weekend of 12-14 August 2011. I accept that the weekend went well. I also accept that, when she was present before mid-August 2011, Ms Tamarovic did not see the child display any unusual behaviour or act in any way to suggest she was afraid of the father. I accept her description of the child as polite and well mannered. – this is consistent with the observations of the school and clinicians who tested the child there. I also accept that, apart from becoming upset at the end of her time with the father, the child appeared very happy when with him.
I accept Ms Tamarovic’s evidence that, once she became aware of the allegation the father had physically harmed the child, she watched him closely to ensure she would not place her own children at risk if she continued her relationship with him. I am left in no doubt whatsoever that, if she had noticed behaviours that were unacceptable to her, Ms Tamarovic would have raised them with the father. I accept she saw nothing in his behaviour toward the child that gave her any cause for concern.
The mother says that, on 18 October 2011, when she was standing in her bedroom, the child walked in naked. The mother spoke with the child about putting pyjamas on so no one sees her vagina, telling her it was private. She says the child said “but you can show them if they ask” and said that dad had asked to see it. When asked by the mother whether it was because it was sore – particularly relevant where, as here, the child has a history of urinary tract infections - the child denied that it was.[29]
[29]Notice of Child Abuse, Family Violence or Risk of Family Violence, filed 30 November 2012, paragraph 37.
The mother told the grandmother, as she was serving dinner, that the child had just told her that the father wants to see her vagina.
The mother continued the conversation around dinnertime by asking the child when the father wanted to see her vagina. The child replied: “when he was being mean daddy.” She said that, one time she was asleep on the lounge at his place and woke up and he was “poking it with his finger”. When the mother asked the child whether it was day or night when this happened the child said “sometimes the sun was up, sometimes it was night time.”
When the mother asked the child how he touched her vagina and did she have undies on, the child said: “yes he went like this, he pulled them over here” (moving her underwear to one side, showing her vagina).
When the mother asked the child if the father had touched her vagina before, she said yes, when they lived at the house prior to their current residence. When asked why she had not told the mother, the child said she did not want to, the father was being a mean daddy.
The mother then told the child that no one was allowed to touch her vagina and that she was going to call the Police lady so the father could get help and stop being the “mean daddy”. She says the child said she did not want to get the father in trouble.
When recounting this event to Ms N the mother said that, when she was teaching the child safe behaviours and told her no one should be able to touch her vagina, the child said her daddy can touch her there.[30] This appears to me to be different to the account set out in paragraphs 123, 125 and 126.
[30] Exhibit 7.
The mother and maternal grandmother both seem to assert that the child’s reported disturbed behaviours are a consequence of her being sexually abused by the father. However, as noted above, these behaviours have only occurred when the child is in their care. I think it highly unlikely that, if the child’s described behaviours were causally related to the father’s alleged behaviours, there would not be some instances during which disrupted behaviours were observed outside her home. I consider it highly unlikely that, if the father’s alleged behaviour was causally responsible for the child’s reported disturbed behaviours, those behaviours would only be seen in one environment. For this reason I am not prepared to rely on the mother and grandmother’s descriptions of the child’s behaviours as evidence which suggests she has been the victim of sexual abuse by the father.
Further, whilst the child has, on occasion, made comments to persons other than the mother and grandmother about alleged sexually abusive behaviours by the father toward her, such comments:
a)have differed significantly over in their particularisation of alleged abusive behaviours and have been, on occasion, significantly inconsistent;
b)have enlarged to encompass the suggestion that the father touched her on the vagina with fork or with both a knife and fork, or with two knives and two forks.
c)have often occurred in circumstances where the recipient of the information had already been told the child wanted to say something about the father’s behaviours: see Annexure A which summarises occasion when the mother or grandmother told a therapist of something the child is alleged to have said earlier and the child later made similar comments and, by way of example, 7 January 2013 and 15 January 2013 in so far as the comment about kissing or trying to kiss on the lips.
I also consider it much more likely than not that the child has been exposed to significant discussion about the alleged behaviour whilst in her mother and grandmother’s care. I do not accept the proposition that the child has been shielded from conversations about these alleged behaviours. I consider it much more likely than not that, in an attempt to have the child report matters to the therapists and authorities, there has been previous discussion with her about the allegations. So much is, I consider, apparent from the manner in which allegations have been made to persons other than the mother and grandmother when regard is had to Annexure A and, particularly, Ms M’s evidence – which I accept notwithstanding the criticism of her note-taking- about her interaction with the child during the second Family Report interview.
My conclusions in this respect are buttressed by the recorded observations of Departmental officers following interaction with the mother - for example:
a)as at March 2013, it was noted that, whilst the mother appeared very concerned about the child and her care and protection, it meant she at times appeared to have “inadvertently” involved her in conversations regarding the father that are inappropriate and “may have influenced” the child’s opinion of him; and
b)a Departmental Officer spoke with Ms O on the morning of 18 March 2013 – the same day the child was to be interviewed – and, when she arrived for the interview that afternoon, the child was aware of the officer’s conversation with Ms O through the mother.
| 1/3/2014 | B sees the father at the Centre. B asks the facilitator whether Ms Tamarovic and her children are coming. When she is asked whether she would like them to, she says she does not want them to. She mentions she only wants to see the father. B isn’t sure whether they’d had the baby. When she is asked how she would feel if the baby was present, the child says she “wasn’t ready.”[354] This phrase seems, to me at least, to have a very adult connotation to it: I consider it a comment unlikely to have been made by a child of the child’s age about a baby – whose birth had excited her only a few months earlier. B says the mother was going to call the Centre that morning and the Police are coming around next week. B tells the Centre supervisor that “last time when daddy was paying fees, he turned round and told me that he was going to take me out of the Centre next time, and I want my mum; when she was paying fees, so I had to tell her.” The Centre supervisor reassures the child she has spoken to the mother and confirmed the visits were as normal and she will not be leaving the Centre. The child smiles and said “yah”. When asked whether she is worried about anything if Ms Tamarovic came, the child says she thinks she would like to see the father first and then Ms Tamarovic, the children and the baby. The Centre supervisor speaks with Ms Tamarovic to ask whether the child knows about the baby. Ms Tamarovic says the child knew because the mother knew as she and her friends had been trying to find out on Facebook. Ms Tamarovic says she can understand the child saying she is anxious and not ready because she is being told things at home. Ms Tamarovic tells the Centre supervisor that, on previous occasions, the mother and a friend followed her to try and intimidate her but she is not easily intimidated. The father brings a photo of the baby into the session with the child. He asks if she would like to see the baby because she is outside. The child says yes. The child gives the father a picture frame containing some artwork she did for him and his family. Whilst the child is initially a little cool on meeting J for the first time, by the end of the visit, she helps with feeding – when the father tells her she can take a photo of J to school and tell them she has a new sister, she smiles and starts asking numerous questions about the baby. After the father and children had left, the child tells the facilitator she wants Ms Tamarovic and the children to come to the next visit. |
| 3/3/2014 | Mother telephones Ms O to report: · B had a bad weekend, the Police did not attend; · B screamed every five minutes “I need to talk to the police” and told herself in the mirror that she hated herself. · B blamed her for marrying someone who hurt her and was physically violent to the mother; · B told her the father had put brown sticky tape over her mouth, tied her hands together and tied her to a staircase post. This was the first occasion on which this allegation was raised and it cannot be forgotten that the father’s most recent opportunity to engage in such behaviour occurred in early August 2011. · B went to the Centre and held the new baby and was upset because she would not see her father for a month because he was away on holidays.[355] It is, I think, pertinent to note that, on the other’s account, the child was upset because she would not see the father for some time and not, for example, because he hurt her by putting tape over her mouth, tying her hands together and tying her to a post. |
| 10/3/2014 | Mother sees Ms O on 10 March 2014 and says the child gave her a message to give to Ms O: “I want to talk to the police.” They had still not attended. Ms O advises the mother to tell the child the Police have to deal with children who are not safe living where they are and who need help first. Mother reports: · B cannot stop moving things: she is moving books, toys and/or ornaments around; · B gets upset if she makes a mistake; · B’s classroom teacher had not observed any anxiety in the child; · B was upset the week before and cried to her teacher after class because of “what daddy did to me.” the child told her the teacher said: “he would not do that.” the child did not want to go to school the next day; · when she checked with the child’s teacher, the teacher denied telling the child what was reported and said she told her: “that’s no good”. · B told her the teacher did not believe her and so she did not like the teacher; · B had taken all of the father’s presents and put them in a bag in the garage; was picking the skin on her fingers and said her stomach was fat and her legs will be. The mother was given advice about how to deal with these comments. [356] |
| 25/3/2014 (10:16pm) | Dr EE, a psychiatric Registrar, provides a report. Whilst Dr EE’s report contains the assertions to the effect that: · when the child’s visits with the father were unsupervised, her behaviours were more extreme; and · when the child’s visits with the father were supervised, her behaviours deescalated, This information can only have come from the mother or maternal grandmother. It is at significant odds with the descriptions of the child’s behaviours provided by the mother to various therapists and the Department. When Dr EE examined the child she denied any perceptual disturbances, maintained good eye contact and demonstrated settled behaviour. Dr EE concluded that “her reactive outburst maybe due to perceived bullying at school exacerbated by PTSD and separation anxiety symptoms as diagnosed by CYHMS” |
| 25/3/2014 (11:55pm) | Mother emails Ms O to tell her the child had been admitted to hospital that night by ambulance and asks that Ms O call her during school hours. |
| 26/3/2014 (11:44am) | Mother emails Ms O with a request for assistance in dealing with the child’s reported to draw what the father had done to her (because she did not know the words of what happened) and give the picture to someone. Mother tells Ms O says the child said if she drew the picture of how the father hurt her, she (the mother) could she tell “them” what the picture is about; when the mother told the child she would have to tell “them”, the child got upset. Mother asks Ms O whether, if the child drew what happened and wanted her to, she (the mother) could take that to the doctor or hospital (if she went again) or to the Family Report writer at interview on 8 April 2014: those people could then talk with the child about what she had drawn. The mother is checking whether this was possible or whether the child needed to draw the picture in front of them.[357] Ms O tells the mother it would be better if the child drew the picture in front of the person so she could explain it to them at the same time; she suggests the mother tell the child her idea to draw a picture is brilliant and that she should use this technique whenever she is trying to explain something tricky.[358] The next day – see below- the child draws a picture for the general practitioner. |
| 26/3/2014 | Mother tells Ms O an Ambulance had been called “last week” because she could not settle the child and the child wanted to talk to the Police. Mother says the child told the Ambulance officer she was scared because her father would hurt her again and he has hurt her before. Mother tells Ms O that: · when the child saw her General Practitioner “last week” she said she was scared of seeing the father and he had hurt her by pulling her upstairs – the child was referred to a paediatrician; · B told the doctor alone about recent disclosures – of being locked in a room, having sticky tape placed over her mouth and being tied to a pole on the stairs; · B is frustrated by homework and troubled by things at school: she tried to kick her and was screaming, grabbing her and fighting her: she would not settle and asked for an ambulance. · B settled once she knew the ambulance was coming; · they went to Suburb K General Hospital Emergency Department where the child saw a psychologist; · B said she had headaches and “can’t get out of my head my daddy will hurt me”; and “he put sticky tape over my mouth.”; · the doctor (Dr EE) told her to get Ms FF involved. Mother asks Ms O to contact the medical practitioner.[359] |
| 27/3/2014 | The mother emails Ms O to advise Ms FF is going to call her - she asks whether there is anything specific, from a professional point of view, she should tell her. The mother says Ms FF had provided the grandmother’s ‘boss’ with the details of two of her paralegals she wanted the mother to contact. Ms O tells the mother that, for her, the important thing is to advocate that the child receive the psychological therapy she clearly needs. |
| 27/3/2014 (4:45 pm) | Mother emails Ms O to say she has obtained a copy of the General Practitioner’s notes[360] from the child’s appointment on Friday which reportedly included assertions that: · B does not want to go and see the father because she is worried he hurt her; · B did not want to leave the house two weeks after seeing the father; · B is happy at school and when mother is around; · B drew a picture of the father with a key and told the doctor that was the key the father used to lock her in a room. Mother says the child was cranky after the appointment and asked her to take her to someone else better who she could tell.[361] Mother tells Ms O the notes from Ms N are important because the child told her in session that the father pulled her up the stairs and kept chucking her on the bed and she was scared of him. This information is not contained in Ms N’s notes. |
| 3/4/2014 | Mother emails Ms O to tell her, amongst other things, that at the parent teacher interview that week the teacher said the child’s reading ability had gone backwards since last year.[362] |
| 6/4/2014 | Mother says she calls Ambulance in the following circumstances: · B goes into a ‘violent rage’ – she starts clinging to the mother and repeatedly screaming ‘mummy’; · B pulls the mother, starts to punch and kick the lounge, pulls the mother’s clothing, pushes her away and grabs her wrists; · B screamed: “I HATE GOING TO THE FAMILY THING. I DON’T WANT TO GO. YOU CAN’T MAKE ME GO.” (the “family thing” is the family report interview scheduled for 8 April 2014.) · B wrapped her arms around her and screamed “MUMMY HUG ME, I NEED YOU. WHERE ARE YOU MUMMY.” · mother can’t calm, console or distract the child; · when the ambulance arrives, the child tells the officers “she was nervous about the family day scheduled for Tuesday because her dad used to hurt her.” · B is taken to hospital by ambulance. · when the child speaks with “Dr EE” she makes further disclosures about the father’s alleged abuse of her. |
| 8/4/2014 | Ms M interviews parties and undertakes observations for the second Family Report Mother told Ms M she called an ambulance on the Sunday night before the interviews because the child was violent, pushed her over and screamed: “I want an ambulance.” When the ambulance officers arrived she told them she was scared about her father and yelled: “I want to go to hospital and talk to someone.” When the child was taken to hospital, [Dr EE] came in and the child told him: “we came home from a meeting and dad hurt her and was angry and put brown tape on her mouth, punched and kicked her and touched her private parts….” The mother told Ms M the “tape and private parts bit” was new because the child usually said “vagina”.[363] |
| 9/4/2014 | Mother emails Ms O to report: · an ambulance was called for the child between 8.30 pm and 9.00 pm on 6 April 2014; · B was nervous about the ‘family day’ on Tuesday and that the father used to hurt her; · the ambulance officers got the child to take a tablet (which she had refused to take earlier) and asked her if she wanted to go to the hospital; · B said she did, despite the mother saying she was settled. · B said she wanted to go and talk to someone : she got up and got ready and the ambulance officers said they would take her; · the ambulance took them to the Suburb K Hospital; · B spoke with a male doctor; · B told him that, when she was staying with the father for a weekend, after a meeting, he hurt her, got angry with her, put tape on her, swore at her, punched and kicked her and touched her private parts. Given the chronology, this alleged event can only have happened before mid-August 2011. · When the doctor asked the child where this happened, she did not know – a house. · the doctor did not write any of this down and said that, because the child was not allowed to see a psychologist, he did not think there was anything he could do. He told the mother to take the child home because she was very sleepy. It is highly unlikely that a medical practitioner would fail to take any notes of the child’s alleged reporting that the father had physically hurt her and sexually abused her. I think it is more likely than not that, in providing this explanation to Ms O the mother was anticipating a request for the production of notes. It is also highly unlikely that, if a medical practitioner at a public hospital received the information the mother reported the child was providing, that person would simply say there was nothing that could be done and send the child home. · that, on 9 April 2014, the child told her she saw her father every time she closed her eye: when asked what he was doing, the child said he was hurting her. When asked how, the child said the things she told the mother about kept coming into her head; · she is concerned the child told Dr EE she also ‘saw’ Ms Tamarovic because, when, around a year ago, the child said Ms Tamarovic was ‘mean’ she had put that down to her adjusting to having a new step-mother but she now had greater concerns for the child’s safety in “their” care, especially given her behaviours and the difficulty in coping with them; · she believed the physical abuse would continue and the child would not be protected by other family members; · she intended to speak with her barrister about “full custody” of the child; Given that the orders in force at this time provided for supervised time only, I conclude it is more likely than not that the mother meant she was going to speak with her lawyer about whether the child could spend no time with the father. · B had a bad afternoon and night after the Family Report interview: lots of screaming, yelling out, kicking and hitting in her sleep.[364] |
| 14/4/2014 | Mother sends Ms O a lengthy email. The email contains the following in summary: · when the mother told her barrister she wanted full custody of the child, he said she did not have the evidence she needed for full custody: evidence regarding PTSD, the child’s mental health and an explanation for her behaviours; · B is experiencing extreme highs and lows: is very angry and then burst into tears; · B is very anxious about things, like being watched; · B became physically violent toward her when she refused to get her a camera; · B either cannot sleep, or, when she does fall asleep, she wakes up from a bad dream and says she sees her father hurting her - when she closes her eyes, she cannot get that out of her head.; · B screams repeatedly for the mother and an ambulance. · B woke up from a bad dream the night before and wanted the mother to call the ambulance: the child said she wanted to tell them the mean things the father did and would say to her; · B got the phone, asked the mother to call, tried to dial herself, became very angry with her when she said she didn’t want to call the ambulance: kicked her, hit her, pushed and twisted her wrist, yelled at her, screamed: ‘do it now’ in her face, said if she was a loving mum she would help her because she was not okay and could not get things out of her head; · mother calls an ambulance – as soon as the child knew the ambulance was coming, she calmed down; · when the ambulance officers arrived, they went into the child’s room and talked to her about going to sleep – she said she was okay to go to bed but, when they started to leave, called out to them : when the ambulance officers went back into the room, whilst the mother was standing in the doorway, the child said she had something on her mind: her dad punching and kicking her, pulling up the stairs; · mother went to sit in the lounge room while the ambulance officers suggested to the child to think of nice, happy things; · B settled and chatted about all sorts of things and was happy and calm when the ambulance officers left, the mother read her stories and she fell asleep. Mother asks Ms O if she should keep calling an ambulance when the child wants her to – she describes that: · B’s physical violence toward her and furniture, walls, objects is increasing; · B becomes so angry instantly, suffers extreme switches between anger, happiness, crying and being scared; · B is getting worse and worse.[365] |
| 28/4/2014 | Mother sees Ms O and reports: · she is applying for ‘full custody’ of the child; · B will not put toothpaste on her toothbrush but insists the mother do that for her; · B is more irritable, wants a lot of affection from her and has more panic attacks; · she has to wipe the child’s bottom for her again; · B is talking to herself more and cannot wash her hair. There is absolutely nothing in the school records or the evidence from the Principal to suggest the child was complaining about or experiencing any difficulty attending to her own toileting and hygiene needs whilst at school. · B saw her father on the weekend and ripped or cut up things he gave her – like a watch; · B flinches when people approach her, is settled by being rocked and that the teacher has referred her to the school guidance officer but the father needs to agree to this. · B bangs her head saying “there is something in my head.” Again, there is nothing in the evidence suggest that this behaviour was seen at school or the Centre. · B will not sleep in her own bed, takes hours to go to sleep, hoards paper and used tissues and is insistent the mother does things for her immediately or she becomes irritable. Ms O suggested the mother tell the child that she had things to do (for example, like getting the washing in) before she could help her.[366] |
| 29/4/2014 | Father emails Ms M to report the mother had previously threatened: “if I can’t have the child, no one will”.[367] |
| 8/5/2014 | Mother tells Ms O that: · given the Family Report, she needs to agree to the child immediately having overnight visits with the father; · she might lose custody of the child and might be seen as not coping if she calls an ambulance again. Ms O tells her she needs to call the ambulance for her own and the child’s safety.[368] |
| 14/5/2014 | Mother sees Ms O – says the child had been angry, upset and clingy and irritable because she (the mother) had been preparing for the upcoming court case. Mother says: · B knocking on things as a compulsion and did this continuously daily; · will not even step into her own room now since she (the mother) has not been available to her and preoccupied by Court proceedings.[369] There is nothing in the evidence from the school or the Principal to suggest the school had noticed the child behaving in the manner described. |
[65] Affidavit of Ms GG Gillard filed 28 November 2012, paragraph 111.
[66] Characterised as a Child Concern Report.
[67] Exhibit 3A, page 100.
[68] Exhibit 3A, page 100-101.
[69] Exhibit 3B, page 217.
[70] Exhibit 3B, page 217.
[71] Exhibit 3B, page 216.
[72] Exhibit 3B, page 217.
[73] Exhibit 3A, page 199.
[74] Exhibit 3B, page 220.
[75] Exhibit 3B, page 209.25.
[76] Exhibit 3B, page. 209.25.
[77]Mother’s affidavit filed 4 November 2013, par 13; Notice of Child Abuse or Risk of Abuse filed 30 November 2012, paragraph 44.
[78]Exhibit 3B, page 209.25.
[79] Exhibit 3B, page 209.25.
[80] Characterised as a Child Concern Report.
[81] Characterised as a Child Concern Report.
[82] Exhibit 3A, page 100.
[83]Exhibit 3B, page 209.4.
[84] Exhibit 3B, page209.4.
[85] Exhibit 3B, page 209.19.
[86] Exhibit 3B, page 209.4.
[87] Exhibit 3A, page 100.
[88] Mother’s affidavit filed 4 November 2013, paragraph 175.
[89] Exhibit 3A, page 100.
[90] Exhibit 3A, page 144.
[91] Exhibit 3A, page 206.
[92] Exhibit 3A, page 206.
[93]The Mother's affidavit filed 4 November 2013, paragraph 85; Notice of Child Abuse, Family Violence or Risk of Family Violence filed 30 November 2012, clause 22.
[94] Exhibit 3A, page 100.
[95] Exhibit 3A, page 26.
[96] Father’s affidavit filed 1 November 2013, Annexure “DT10”.
[97] Exhibit 3A, page 144.
[98] Exhibit 3A, pages 99, 144.
[99] The Father’s affidavit filed 15 November 2013, Annexure “DT5”.
[100] Exhibit 3A, page 99.
[101] Exhibit 3A, page 208.
[102] Exhibit 3A, page 31.
[103] Exhibit 3A, page 145.
[104] Exhibit 3A, pages 145, 146.
[105] Exhibit 3A, page 99.
[106] Exhibit 3A, page 100.
[107] Exhibit 7.
[108] Exhibit 3B, pages 415, 416.
[109] Exhibit 3A, pages 99 and 146.
[110] The Mother’s affidavit filed 4 November 2013, paragraph 97.
[111] Exhibit 6.
[112] Consumer Assessment document.
[113] Exhibit 3B, page 229.
[114] Exhibit 3B, page 230.
[115] Exhibit 3B, page 230.
[116] Exhibit 3B page 230.
[117] Exhibit 3B, page 231.
[118] Exhibit 3B, page 231.
[119] Exhibit 3B, page 231.
[120]Exhibit 3B, page 233.
[121]Notice of Child Abuse, Family Violence or Risk of Family Violence field 30 November 2012, paragraph 36.
[122] Exhibit 3A, page 99, 146, 147.
[123] Exhibit 3B, page 233.
[124] Exhibit 3B, page 223, 224.
[125] Exhibit 3b, page 224.
[126] Exhibit 9
[127] Exhibit 3B, page 232.
[128] Exhibit 3B, page 232.
[129] Exhibit 3B, page 232.
[130] Exhibit 3B, page 232.
[131] Exhibit 3B, page 225.
[132] Exhibit 3A, page 25.
[133] Exhibit 3A, page 99, 147.
[134] Exhibit 3B, page 238.
[135] Exhibit 3B, page 240.
[136] Exhibit 3B, page 242.
[137] Exhibit 3B, page 242.
[138] Exhibit 3B, page 242.
[139] Exhibit 3B, page 244.
[140] Exhibit 3B, page 246.
[141] Exhibit 3B, page 247.
[142] Exhibit 3B, page 249.
[143] Exhibit 3A, page 24.
[144] Exhibit 13
[145] Exhibit 3A, page 147.
[146] Exhibit 3A, page 99, 147, 148.
[147] Exhibit 3B, page 250.
[148] Exhibit 3B, page 250.
[149] Exhibit 3B, page 250.
[150] Exhibit 3B, page 250.
[151] Exhibit 3B, page 250.
[152] Exhibit 3B, page 252.
[153] Exhibit 3B, page 254.
[154] Exhibit 3B, page 257.
[155] Exhibit 3B, page 257.
[156] Exhibit 3B, page 257.
[157] Exhibit 3B, page 259.
[158] Exhibit 3B, page 261.
[159] Exhibit 3B, page 255.
[160] Exhibit 3A, page 23.
[161] Exhibit 3B, page 263.
[162] Exhibit 3B, page 263.
[163] Exhibit 3B, page 265.
[164] Exhibit 3B, page 272.
[165] Exhibit 3A, page 50.
[166] Exhibit 3A, page 53.
[167] Exhibit 3A, page 48.
[168] Exhibit 3A, pages 48, 49.
[169] Exhibit 3B, page 267.
[170] Father’s affidavit filed 1 November 2013, Annexure “DT 14”.
[171] Exhibit 3B, 250
[172] Exhibit 3B, page 274.
[173] Exhibit 3A, page 37.
[174] Exhibit 3B, page 275.
[175] Exhibit 3B, page 278.
[176] Exhibit 3B, page 276
[177] Exhibit 3A, page 11.
[178] Exhibit 3A, page 22.
[179] Exhibit 3A, page 204.
[180] Exhibit 3A, page 22.
[181] Exhibit 3A, page 22.
[182] Exhibit 3A, page 22.
[183] Exhibit 3B, page 285.
[184] Exhibit 3B, page 285.
[185] Exhibit 3B, page 287.
[186] Exhibit 3A, page 55.
[187] Exhibit 3A, page 56.
[188] Exhibit 3A, page 55.
[189] Exhibit 3B, page 292.
[190] Exhibit 3A, page 33.
[191] Exhibit 3B, page 293.
[192] Exhibit 3B, page 293.
[193] Exhibit 3B, page 293.
[194] Exhibit 3B, page 293.
[195] Exhibit 3B, page 293.
[196] Exhibit 3B, page 293.
[197] Exhibit 3B, page 293.
[198] Exhibit 3B, page 293.
[199] Exhibit 3B, page 293.
[200] Exhibit 3B, page 293.
[201] Exhibit 3B, page 298.
[202] Exhibit 3B, page 298.
[203] Exhibit 3B, page 300.
[204] Exhibit 3B, page 302.
[205] Exhibit 3B, page 306.
[206] Exhibit 3B, page 306.
[207] Exhibit 3B, pave 306.
[208] Exhibit 3B, page 208.
[209] Exhibit 3B, page 310.
[210] Exhibit 3B, page 312.
[211] Exhibit 3C, page 416.
[212] Exhibit 3B, page 316.
[213] Exhibit 3B, page 323.
[214] Exhibit 3B, page 324.
[215] Exhibit 3B, page 333.
[216] Exhibit 3B, page 333.
[217] Exhibit 3B, page 336.
[218] Exhibit 3B, page 336.
[219] Exhibit 3C, page 416.26.
[220] Exhibit 3C, page 416.25.
[221] Exhibit 3B, page 348.
[222] Exhibit 3B, page 348.
[223] Exhibit 3B, pave 350-9.
[224] Exhibit 3B, page 355-6.
[225] Exhibit 3B, pages327 and 360.
[226] Exhibit 3B, page 360.
[227] Exhibit 3C, (416.10.
[228] Exhibit 3B, page 340.
[229] Exhibit 3B, page 343.
[230] Exhibit 3C, (416.31).
[231] Exhibit 3B, page 318.
[232] Exhibit 3B, page 319.
[233] Exhibit 3B, page 327.
[234] Exhibit 3A, page 98.
[235] Exhibit 3B, page 364.
[236] Exhibit 3B, page 364.
[237] Exhibit 3B, page 364.
[238] Exhibit 3B, page 364.
[239] Exhibit 3B pages 366 and 367.
[240] Exhibit 3B, page 212, 364.
[241] Exhibit 3B, page 368.
[242] Exhibit 3B, page 369.
[243] Exhibit 3B, page 369.
[244] Exhibit 3B, page 370.
[245] Exhibit 3B, page 371.
[246] Exhibit 3B, page 372.
[247] Exhibit 3B, page 373.
[248] Exhibit 3B, page 377.
[249] Exhibit 3A, page 97.
[250] Exhibit 3A, page 97.
[251] Exhibit 3A, page 97.
[252] Exhibit 3A, page 97.
[253] Exhibit 3A, page 97.
[254] Exhibit 3A, page 97.
[255] Exhibit 3A. page 97.
[256] Exhibit 3A, page 62.
[257] Exhibit 3C, page 416.34
[258] Exhibit 3C, page 416.35
[259] Exhibit 3C, page 416.14.
[260] Exhibit 3B, page 378.
[261] Exhibit 3A, page 98.
[262] Exhibit 3A, page 98
[263] Exhibit 3A, page 98.
[264] Exhibit 3A, page 96.
[265] Exhibit 3B, page 397.
[266] Exhibit 3A, page 109.
[267] Exhibit 3B, page 380.
[268] Exhibit 3B, page 380.
[269] Exhibit 3B, page 380.
[270] Exhibit 3B, page 381.
[271] Exhibit 3B, 381.
[272] Exhibit 3B, page 381.
[273] Exhibit 3B, page 382.
[274] Exhibit 3B, page 382.
[275] Exhibit 3B, page 382.
[276] Exhibit 3B, page 382.
[277] Exhibit 3B, page 382.
[278] Exhibit 3A , pages 108 – 113.
[279] Exhibit 3B, page 388.
[280] Exhibit 3B, page 319.
[281] Exhibit 3A, page 188.
[282] Exhibit 3A, page 209.
[283] Exhibit 3B, page 391.
[284] Exhibit 3B, page 391.
[285] Exhibit 3B, page 392.
[286] Exhibit 3C, page 416.63.
[287] Exhibit 3C, page 416.66.
[288] Exhibit 3B, page 393.
[289] Exhibit 3B, page 396.
[290] Exhibit 3A, page 126.
[291] Exhibit 3A, page 181-3.
[292] Exhibit 3A, page 182.
[293] Exhibit 3A, page 182.
[294] Exhibit 3A, page 182.
[295] Exhibit 3A, page 60-1.
[296] Exhibit 3B, page 397.
[297] Exhibit 3A, page 38.
[298] Exhibit 3B, page 398.
[299] Exhibit 3B, page 399.
[300] Exhibit 3B, page 400.
[301] Exhibit 3B, page 402.
[302] Exhibit 3A, page 183.
[303] Exhibit 3B, page 401.
[304] Exhibit 3B, page 403.
[305] Exhibit 3C, page 416.8A.
[306] Exhibit 3C, 416.92.
[307] Exhibit 3 C, 416.72.
[308] Exhibit 3B, page 404.
[309] Exhibit 3A, page 186.
[310] Exhibit 3A, page 184.
[311] Exhibit 3A, page 178-81.
[312] Exhibit 3A, page 180.
[313] Exhibit 3A, page 149.
[314] Exhibit 3A, page 181.
[315] Exhibit 3A, page 184.
[316] Exhibit 3A, page 20.
[317] Exhibit 3B, page 406.
[318] Exhibit 3A, page 185.
[319] Exhibit 3B, page 407.
[320] Exhibit 3B, page 409.
[321] Exhibit 14
[322] Exhibit 3C, page 596 – 601.
[323] Exhibit 14
[324] Exhibit 3C, page 582.
[325] Exhibit 14
[326] Paragraph 4.25 first Family Report
[327] Exhibit 3A, page 80.
[328] Mother’s affidavit filed 4 November 2013, paragraphs 101, 102.
[329] Exhibit 14.
[330] Exhibit 3C, page 536.
[331] Exhibit 3A, page 79.
[332] Exhibit 12.
[333] Exhibit 12.
[334] Exhibit 3C, page 52.
[335] Exhibit 3C, page 491.
[336] Exhibit 3C, page 500.
[337] Exhibit 3C, page 505
[338] Exhibit 12.
[339] Exhibit 12.
[340] Exhibit 12.
[341] Mother’s affidavit filed 4 November 2013, paragraphs 103 – 110.
[342] Exhibit 12.
[343] Exhibit 12.
[344] Exhibit 12.
[345] Exhibit 12.
[346] Exhibit 3A, page 78.
[347] Exhibit 12.
[348] Part of Exhibit 12.
[349] Exhibit 12.
[350] Exhibit 3A, page 77.
[351] Exhibit 3C, page 423
[352] Exhibit 12.
[353] Exhibit 12.
[354] Exhibits 2, 14.
[355] Exhibit 12.
[356] Exhibit 12.
[357] Exhibit 12.
[358] Exhibit 12.
[359] Exhibit 12.
[360] annexed to Mother’s affidavit filed 9 May 2014
[361] Exhibit 12.
[362] Exhibit 12.
[363] Paragraph 3.18, second Family Report.
[364] Exhibit 12.
[365] Exhibit 12.
[366] Exhibit 12.
[367] Paragraph 4.2, second Family Report.
[368] Exhibit 12.
[369] Exhibit 12.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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