Thornton and Machey & Anor

[2012] FamCA 1057

FAMILY COURT OF AUSTRALIA

THORNTON & MACHEY AND ANOR [2012] FamCA 1057

FAMILY LAW – CHILDREN – With whom the child spends time – where the child spends time with the mother one day each weekend graduating to the child spending every third weekend and half of school holiday periods with the mother over next two years – where a graduated scheme allows for the relationship between the mother and child to be restored – where the paternal family abandoned allegations that the child was at risk of sexual harm from the mother, her husband or the maternal half-sibling – where the father currently resides with the paternal grandmother

FAMILY LAW – CHILDREN – With whom the child lives – where the child lives with the paternal grandmother – where the child has a more significant and meaningful relationship with the paternal grandmother than with the parents – where there is a high risk of psychological harm to the child in removing her from the residence of the paternal grandmother – where the paternal grandmother and father both demonstrated some insight into the detrimental effect upon the child of not supporting her relationship with the mother – where there is an injunction restraining the child’s unattended interaction with the paternal great grandmother

FAMILY LAW – CHILDREN – Parental Responsibility – where the paternal grandmother, father and mother have equal shared parental responsibility – where it would benefit the child for the mother to be involved in major long-term decisions concerning her welfare despite the past conflict between the paternal family and the mother

FAMILY LAW – CHILDREN – Injunctions – parties restrained as to the names used by or in the presence of the child for the paternal grandmother, the father, the mother, and the mother’s husband

FAMILY LAW – CHILDREN – Name of child – orders made for the paternal grandmother to register the change to the child’s surname

Births, Deaths, and Marriages Registration Act 1995 (NSW)
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65AA, 65DAA, 65DAC and 65DAE
Family Law Amendment Act 2000 (Cth)

Aldridge & Keaton (2009) FLC 93-421
Dennett & Norman [2007] FamCA 57
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Marriage of L & T (1999) 25 Fam LR 590
McCall v Clark (2009) 41 Fam LR 483
MRR v GR (2010) 240 CLR 461
Potts & Bims & Ors [2007] FamCA 394
Re David (1997) 22 Fam LR 489

APPLICANT: Ms Thornton

RESPONDENT: Ms Machey

SECOND RESPONDENT: Mr E

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 3235 of 2009

DATE DELIVERED: 14 December 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 26, 27, 28 & 29 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B. Kelly

SOLICITOR FOR THE APPLICANT: Nash Allen Williams & Wotton Solicitors

COUNSEL FOR THE FIRST RESPONDENT: Ms D. Burns

SOLICITOR FOR THE FIRST RESPONDENT: Baker Love Lawyers

COUNSEL FOR THE SECOND RESPONDENT: N/A

SOLICITOR FOR THE FIRST RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms A. Harland

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All former orders, including Orders 19-37 made on 1 December 2010, concerning the child B, born on … February 2009, (“the child”) are discharged.

2. The mother, father, and paternal grandmother shall have equal shared parental responsibility for the child.

3. The child shall live with the paternal grandmother.

4. The child shall spend time and communicate with the father in the manner agreed between the paternal grandmother and the father.

5. Each of the parties shall take all reasonable steps to ensure that the child spends time with the mother as follows, unless otherwise agreed:

   (a)Until 30 June 2014;

   (i)Each Saturday from 10.00 am until 4.00 pm; and

   (ii)From 4.00 pm Saturday until 4.00 pm Sunday on each Mother’s Day weekend.

   (b)From 1 July 2014 until 30 June 2015;

   (i)During NSW public school terms, each alternate weekend from the conclusion of school or pre-school on Friday until 10.00 am on Sunday, commencing on the first Friday of each school term;

   (ii)During NSW public school holidays, for the first five days of each holiday period, commencing from the conclusion of school or pre-school on the last day of term and concluding at 4.00 pm on the fifth day thereafter; and

   (iii)From 4.00 pm Saturday until 4.00 pm Sunday on each Mother’s Day weekend.

   (c)       From 1 July 2015:

   (i)During NSW public school terms, each third weekend from the conclusion of school on Friday until 6.00 pm Sunday, commencing on the first Friday of each school term; and

   (ii)During NSW public school holidays, except the Christmas holidays, for the first half of such holidays in every odd numbered year and for the second half of such holidays in every even numbered year;

   (iii)For the last two weeks of all NSW public school Christmas holidays, ending at 4.00 pm on the second last day before the child resumes school and commencing at 10.00 am on the day 14 days before; and

   (iv)From 4.00 pm Saturday until 6.00 pm Sunday on each Mother’s Day weekend.

6. For the purposes of implementation of Order 5 hereof, the NSW public school holidays are deemed to commence upon the conclusion of school on the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day halfway between those first and last days.

7. Order 5 hereof is suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day, and with the paternal grandmother and father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in even numbered years, with the same arrangements in reverse in odd numbered years;

   (b)From 5.00 pm Saturday for the remainder of the weekend on each Father’s Day weekend.

8. For the purposes of implementing Order 5 hereof:

   (a)Whenever the child is to begin spending time with the mother at the conclusion of school or pre-school, the mother shall collect the child from school or pre-school;

   (b)When the child is to begin spending time with the mother at any other time, the paternal grandmother shall cause the delivery and the mother shall cause the collection of the child at the McDonald’s Restaurant at C Town, NSW;

   (c)When the child is to finish spending time with the mother at any other time, the mother shall cause the delivery and the paternal grandmother shall cause the collection of the child at the McDonald’s Restaurant at D Town, NSW.

9. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

   (a)The mother, each Wednesday at 6.00 pm when the child is living with the paternal grandmother, and for that purpose the mother shall telephone the child on the telephone number provided to her by the paternal grandmother, and the paternal grandmother shall ensure that the child is able to receive the mother’s calls on that number at that time.

   (b)The paternal grandmother, each Wednesday at 6.00 pm when the child is spending time with the mother, and for that purpose the paternal grandmother shall telephone the child on the telephone number provided to her by the mother, and the mother shall ensure that the child is able to receive the paternal grandmother’s calls on that number at that time.

10. The paternal grandmother and father are restrained from causing or allowing the child to be left alone and unattended in the presence of the paternal great grandmother.

11. The parties are restrained from causing or allowing the child to be exposed to any discussion concerning this litigation or the potentiality of the child’s past sexual abuse.

12. Until 30 June 2013, the mother is restrained from attending the child’s pre-school.

13. Each party is restrained from referring in the child’s presence, or permitting the child to refer, to:

    (a)The paternal grandmother by any names other than “Mummy” or “Mummy [Ms Thornton]”;

    (b)The mother by any names other than “Mummy”, “Mummy [Ms Machey]”, or “Mummy [Ms Machey]”;

    (c)The father by any names other than “Daddy” or “Daddy [Mr E]”; and

    (d)The mother’s husband by any names other than “Daddy” or “Daddy [Mr F]”.

14. The parties are restrained from causing or permitting the child to be known by any surname other than “Machey-Thornton”.

15. The paternal grandmother shall forthwith take all reasonable steps to ensure that the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths, and Marriages Registration Act 1995 (NSW) is amended so as to disclose the child’s surname as “Machey-Thornton”.

16. The paternal grandmother shall ensure the attendance of, and participation by, the child in therapeutic counselling for as long as deemed necessary by the counsellor, and for that purpose:

    (a)The Independent Children’s Lawyer shall notify the paternal grandmother in writing, within one month of the date of these orders, of the name, address and contact details of the counsellor selected by the Independent Children’s Lawyer;

    (b)The paternal grandmother shall ensure the child attends upon that counsellor within one month of such notification by the Independent Children’s Lawyer; and

    (c)The Independent Children’s Lawyer shall furnish to the counsellor copies of:

    (i)These orders;

    (ii)The reasons for judgment explaining the orders; and

    (iii)The single expert report of Dr G date 12 April 2012.

17. Each party is restrained from denigrating the others in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the others.

18. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

19. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

20. In the event of any party notifying either the police or a prescribed child welfare authority that the child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made copies of:

    (a)       These orders;

    (b)       The reasons for judgment explaining the orders; and

    (c)The single expert report of Dr G dated 12 April 2012.

21. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

22. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period, or compliance with Order 16 hereof, whichever is the later.

23. Costs are reserved for 28 days.

24. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thornton & Machey 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 NEWCASTLE

FILE NUMBER: NCC 3235 of 2009

Ms Thornton

Applicant

And

Ms Machey

First Respondent

And

Mr E

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting arrangements for the only child (“the child”) of the mother and father, who are both respondents to the proceedings. The paternal grandmother is the applicant.

2. The same parties were involved in former proceedings, relating to the child and another child of the mother, which were concluded by entry into consent orders on 1 December 2010. Those orders held sway for barely months before the parties’ lives were again riven with controversy.

3. The paternal grandmother formed the view that the child was the subject of sexual abuse by some person – probably the mother’s husband – within the mother’s household and so she commenced these proceedings to alter the orders made in December 2010.

4. The interests of the paternal grandmother and father were aligned. They finally proposed that they have equal shared parental responsibility for the child and that the child live with the paternal grandmother. Their proposals concerning interaction between the child and the mother fluctuated considerably. Ultimately they abandoned their contention about the existence of any unacceptable risk of sexual abuse to the child within the mother’s household, but still advocated for greater restriction upon the frequency and duration of the time spent by the child with the mother.

5. The mother conversely proposed that the child live with her and that parental responsibility for the child be shared equally between herself, the paternal grandmother and the father. She alleged the paternal grandmother was deliberately causing her elimination from the child’s life and the only way to preclude that eventuality was to have the child reside with her.

Background

1. The mother has two children. They are H (“H”), born in January 2007, and B (“the child”), born in February 2009. The father is the biological father of the child, but not H.

2. The mother and father began cohabitation in April 2009 when the child was only two months of age and they separated in November 2009.

3. Parenting proceedings were shortly thereafter commenced in the Local Court of NSW, where the mother and father entered into interim consent orders for the child to live with them for equal time on two-day cycles. The child began to live with the paternal grandmother in the latter months of 2010.

4. The proceedings were later transferred to this Court and the ambit of the proceedings was broadened in two ways; H was included as a subject and the paternal grandmother, the maternal grandmother, and H’s father were all joined as parties.

5. Those former proceedings were concluded on 1 December 2010 when final parenting orders were made with the consent of all parties. Relevantly, in respect of the child, those orders provided for:

   a)The paternal grandmother to have sole parental responsibility for the child’s living arrangements, but otherwise the paternal grandmother and father to have equal shared parental responsibility for the child (Order 19);

   b)The child to live with the paternal grandmother (Order 20), in which household the father would also reside (Order 21);

   c)The child to spend time with the mother and H frequently and on a gradually expanding basis (Orders 23-25);

   d)The paternal grandmother to inform the mother about any developments concerning the child’s medical management (Orders 26, 27, 29);

   e)Restraint of the parties from criticising one another in the presence of the child (Order 33); and

   f)Restraint of the parties from using any surname other than “Machey-Thornton” for the child (Order 37).

6. The orders were implemented until only 5 March 2011, at which point the paternal grandmother declined to allow the child to spend time with the mother.[1] The paternal grandmother admitted she unilaterally made that decision because she was dissatisfied with the mother’s new residence and feared the child was not safe within that home.

   [1] Mother’s affidavit, para 7

7. The mother filed a Contravention Application, which was later resolved on 25 May 2011 when the parties agreed to abide by the existing orders. The child then began spending time with the mother again.

8. After the child resumed spending time with the mother the paternal grandmother noticed that upon her return from the mother her genitals were inflamed and the child generally exhibited behaviour that she interpreted as sexualised. The paternal grandmother consulted a doctor and was given an innocent explanation for both the inflammation and the behaviour.[2]

   [2] Paternal grandmother’s affidavit, paras 97-103, 158-159, 161

9. Some months later, in August 2011, the paternal grandmother again took the child for a medical examination upon noticing that her genitals were inflamed. During the examination, in response to leading questions, the child reported that she had been touched on the genitals by the mother, the mother’s husband, and H.[3] The matter was reported to the NSW Department of Family and Community Services (“the Department”) and was later followed up by the paternal grandmother.[4] No further action was ever taken by the Department.

   [3] Paternal grandmother’s affidavit, paras 68-81

   [4] Paternal grandmother’s affidavit, paras 79-80, 82, 107

10. Notwithstanding the paternal grandmother’s fear of sexual abuse, the child still continued to visit with the mother and the paternal grandmother still continued to observe behaviour in the child that she interpreted as sexualised.[5]

    [5] Paternal grandmother’s affidavit, paras 113-119, 123-128, 131-133, 139

11. Eventually, the paternal grandmother decided to again withhold the child from the mother. That occurred as from 12 November 2011,[6] and she began these proceedings by filing her Application on 25 November 2011.

    [6] Mother’s affidavit, paras 10, 26

12. Interim consent orders were made by the Court with the parties’ consent on 9 March 2012 providing for the child to spend time with the mother for several hours every Saturday, with changeovers to occur at a contact service.[7] The child began spending time with the mother pursuant to those orders in May 2012[8] and those arrangements have prevailed ever since.

    [7] Orders 2.4, 2.6-2.8 made on 9 March 2012

    [8] Mother’s affidavit, paras 12-13, 26; Paternal grandmother’s affidavit, para 158

13. The orders made in March 2012 also restrained the child’s interaction with the mother’s husband,[9] but that injunction was consensually varied on 23 April 2012 to enable the child to be in the presence of the mother’s husband if in a public place and in the company of an adult in addition to the mother.[10]

    [9] Order 2.5 made on 9 March 2012

    [10] Order 5 made on 23 April 2012

Proposal and primary evidence of paternal grandmother

1. The paternal grandmother filed her Amended Application on 30 May 2012, but her counsel announced at the commencement of the trial, both orally and in writing:

   The paternal grandmother is seeking the opportunity to hear evidence from the mother and [the mother’s husband] in relation to the sexualised behaviour of the child before proving (sic) a minute of order to the Court.

2. At the commencement of final submissions the paternal grandmother tendered a minute of the orders she proposed,[11] which generally provided for:

   a)Parental responsibility for the child to be shared by her and the father;

   b)The child to live with her;

   c)The child to spend time with the father as agreed between her and the father, but failing agreement, on every third weekend during school terms from the commencement of the child’s third year of school; and

   d)The child to spend time with the mother on a gradually expanding basis, beginning with each alternate Saturday and culminating in several years time with each third weekend and half of all school holidays.

   [11] Exhibit PGM3

3. Although the paternal grandmother’s final written proposal about the time to be spent by the child with the mother was conditional in one respect,[12] that condition was expressly abandoned in oral submissions.

   [12] Exhibit PGM3, Order 7

1. The paternal grandmother relied upon the affidavits filed by both her and the paternal great grandmother on 26 October 2012.

Proposal and primary evidence of father

1. The father began the trial seeking the orders set out in his Amended Response filed on 8 June 2012.

2. Despite the father’s asserted belief to the contrary,[13] the orders he proposed in his Amended Response were different from the orders proposed by the paternal grandmother.

   [13] Father’s affidavit, para 3

3. It was announced during final submissions that the father supported the orders proposed by the paternal grandmother in all respects and had no submissions to separately make.

4. The father relied only on his own affidavit filed on 12 November 2012.

Proposal and primary evidence of mother

1. The mother began the trial pressing for the orders set out in her Amended Response filed on 1 June 2012.

2. Her final proposal was that the child should live with her and that parental responsibility for the child should be shared equally between her, the paternal grandmother and the father. She tendered a minute of the order she proposed should regulate the time spent by the child with both the paternal grandmother and father,[14] which generally made provision for each alternate weekend and half of school holidays.

   [14] Exhibit M4, Orders 3-4

3. In the event of the Court concluding the child should remain living with the paternal grandmother, the mother proposed an alternate suite of orders, comprised in another tendered minute.[15] It made provision for the child to spend time with her on a gradually expanding basis, but at a greater rate of acceleration than that proposed respectively by the Independent Children’s Lawyer, the paternal grandmother and the father.

   [15] Exhibit M5

4. The mother relied upon:

   a)Her affidavit filed on 26 October 2012;

   b)The affidavit of her husband, Mr F, filed on 26 October 2012;

   c)The affidavit of her psychologist, Ms I, filed on 25 October 2012; and

   d)The affidavit of Ms J filed on 26 November 2012.

Proposal and evidence of independent children’s lawyer

1. The Independent Children’s Lawyer revealed the orders she proposed at the commencement of final submissions by tendering a minute of orders.[16] Her proposal entailed:

   a)Parental responsibility for the child being shared equally between the paternal grandmother, the father and the mother;

   b)The child living with the paternal grandmother;

   c)The child spending time with the father as agreed between him and the paternal grandmother; and

   d)The child spending time with the mother on a gradually expanding basis, beginning with every Saturday and culminating more than two years hence in alternate weekends and tranches of the school holidays.

   [16] Exhibit ICL5

2. The Independent Children’s Lawyer relied upon the affidavit of Ms K filed on 13 November 2012.

Additional evidence

1. Dr G, psychiatrist, was appointed as the single expert witness in the proceedings. She prepared a comprehensive report dated 12 April 2012, the contents of which she adopted by annexing it to the affidavit she affirmed on the same date.

2. The single expert was cross-examined at length. Her evidence was reasoned, logical and balanced and I accept it in most respects.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child

1. The provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421 at [44]-[48], [65], [74], [109]-[112], [119]; Potts & Bims & Ors [2007] FamCA 394 at [8]-[9]). Nevertheless, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Aldridge & Keaton at [59]-[61], [75]-[81], [83]; Dennett & Norman [2007] FamCA 57 at [53]-[60]).

2. Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern grandparents may still be considered under s 60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed (see Aldridge & Keaton  at [111]-[112], [119]). Consequently, I will deal with the parents and maternal grandmother simultaneously under all of the relevant criteria set out within s 60CC(3) of the Act.

Best interests – primary considerations (s 60cc(2))

1. At the conclusion of the evidence the paternal grandmother and father both renounced their long-held concerns about the exposure of the child to the risk of sexual abuse by the mother or any person associated with her.

2. Specifically, they conceded the evidence fell short of establishing that the child was sexually abused, either by the mother, the mother’s husband, or H.

3. Further, they conceded that neither the mother, nor the mother’s husband, nor H presented any unacceptable risk of sexual abuse to the child.

4. Lastly, they expressly abandoned any proposal or suggestion that the time spent by the child in the company of the mother, the mother’s husband, or H should be supervised or should only occur in the presence of a third party.

5. Although such admissions were belatedly made, it is significant that they were made. The admissions lay to rest the allegations of sexual impropriety, or suspected sexual impropriety, previously made against the mother and her husband and vindicates their consistent and persistent denials of the allegations. The admissions are an unconditional public acknowledgement that the child is safe from harm in their care.

6. Consequently, the focus of the litigation shifted to the importance of the child being able to enjoy a meaningful relationship with the mother and the likelihood of her being able to do so if she remained living with the paternal grandmother.

7. Despite disruption of the child’s attachment to the mother in the past, there is little doubt the child currently enjoys a meaningful relationship with the mother and there was no debate about the need to encourage development of that relationship. The child will certainly derive benefit from her relationship with the mother if it is able to flourish. The controversy surrounded the willingness and capacity of the members of the paternal family to promote the child’s relationship with the mother, since the mother believed they deliberately suppressed the relationship and that their platitudinous expressions of willingness to promote the relationship were feigned.

Best interests – additional considerations (s 60cc(3))

1. The past antipathy of the paternal grandmother, the father and the paternal great grandmother towards the mother and her husband was unmistakeable.

2. The paternal grandmother provided a history of her interaction with the mother to the child’s paediatrician which led the paediatrician to describe their relationship as “acrimonious”,[17] so there is no doubt about the paternal grandmother’s past ill feelings towards the mother.

   [17] Exhibit ICL3

3. In understanding that acrimony it is instructive to take account of the parties’ personalities and perceptions.

4. The mother and her husband are aged in only their early twenties. The mother presented as timid and apprehensive, no doubt in part because she is anxious about the outcome of the litigation. The single expert similarly found her nervous and self-deprecatory.[18] Her husband was an impressive young man; meek and courteous but resolute and reliable. He was clearly a dependable partner for the mother and they have a solid relationship.

   [18] Single expert report, page 14

5. The paternal grandmother is 52 years of age and presented as an assertive woman when she gave evidence. The single expert formed a similar view of her.[19] The paternal grandmother told the single expert she is aware she can present as “bold and brash” and can “let fly” when riled.[20] She also conceded she had yelled at the mother in the past and the mother had requested the use of a contact centre for their exchanges of the child because of her abuse.[21] The single expert confirmed in cross-examination she did not have any recollection or contemporaneous note of the paternal grandmother making any positive remarks about the mother.

   [19] Single expert report, page 7

   [20] Single expert report, page 8

   [21] Single expert report, page 9

6. The paternal grandmother was dismissive of the mother and appeared to regard her as a nuisance who unnecessarily complicated her control of the child’s life. The mother gave evidence of how the paternal grandmother said to her shortly after the orders were made in December 2010 “I am [the child’s] legal guardian, so that means I am now her mother. I’m her mother now, you gave up on her”.[22] The mother also reported to the single expert how the paternal grandmother told her she had given up on the child and screamed at her “I’m [the child’s] mother now”.[23]

   [22] Mother’s affidavit, para 15

   [23] Single expert report, page 2

7. The mother was not challenged about either that evidence or her comments to the single expert and so I accept the correctness of her version of those events, particularly since the mother’s husband also reported to the single expert he had overheard the paternal grandmother instruct the child not to listen to the mother, saying “I’m Mummy”,[24] and furthermore deposed in his affidavit and in cross-examination to having heard the paternal grandmother say to the mother words to the effect she had signed away her rights as a mother.[25]

   [24] Single expert report, page 12

   [25] Affidavit of Mr F, para 6

8. The mother’s humiliation over her parental demotion was compounded by the paternal grandmother sending to her photographs and other memorabilia of the child, marked with captions describing the paternal grandmother as “Mummy”. The paternal grandmother disavowed any hurtful intention in doing so, but conceded she had been thoughtless.

9. The mother was wounded by the paternal grandmother’s derision of her, denying to the single expert she had given up on the child as the paternal grandmother alleged.[26] Her continued participation in the litigation was a true measure of her commitment to the child, entailing confrontation of her past frailties and the sexual abuse allegations made against her and her husband, which proved baseless. It would have been easy to surrender, but she did not.

   [26] Single expert report, page 15

10. The paternal grandmother told the single expert she “took over” the care of the child in September 2010 so the father could “get a career” and acknowledged the father may feel she had “pushed him out of [the child’s] life”.[27] If the father genuinely feels that way about the paternal grandmother’s control of the child, even while living with them in a common household, it is easy to imagine how the mother feels so marginalised in the child’s life.

    [27] Single expert report, page 8

11. I accept the single expert’s opinion that the paternal grandmother is “currently over controlling”.[28] She has exerted her authority and dominated the child’s life, eradicating any vestiges of control sought to be exercised by either the mother or the father.

    [28] Single expert report, page 20

12. The father and paternal great grandmother both replicated the paternal grandmother’s adverse views of the mother.

13. The father reported to the single expert gross criticisms of the mother’s parenting capacity and his lack of trust in her.[29]

    [29] Single expert report, page 11

14. The paternal great grandmother was asked in cross-examination about any positive remarks she makes to the child concerning the mother and she quizzically replied “There’s nothing you can say”. She said she had never heard the father say anything positive about the mother to the child and the most positive thing she had ever heard the paternal grandmother say to the child was “go [with the mother] and have a nice time”.

15. The clear inference was that none of the paternal family could say anything complimentary about the mother. The best they could do was encourage the child to have a “nice time” with her notwithstanding.

16. The mother’s husband is also disliked by the paternal family. The paternal grandmother did not hide her dislike of him, even sharing it with the child’s pre-school teachers.[30] The paternal grandmother admitted in cross-examination the teachers could reasonably have perceived her dislike of him from her comments.

    [30] Affidavit of Ms K, para 66

17. Of course, the adverse comments made about the mother and her husband by the members of the paternal family need to be considered in the context of their former belief that the child had been sexually abused within the maternal household. The single expert correctly observed that it was difficult to evaluate whether or not the paternal grandmother valued the child’s relationship with the mother in isolation from her hitherto concern about the child’s sexual abuse.

18. Still, it must be observed that the paternal family’s aversion to the mother was evident well before the concerns of sexual abuse first arose in around June 2011.

19. In February 2011 the paternal grandmother unilaterally determined, in direct contravention of the orders consensually made only months before in December 2010, to cease allowing the child to spend time with the mother. The paternal grandmother apparently considered it relatively simple to make that decision because she had misgivings about her agreement to the orders made in December 2010.[31]

    [31] Paternal grandmother’s affidavit, para 140

20. The sole reason for the paternal grandmother’s decision to flout the Court’s orders was her fear that the child’s physical safety was compromised by visiting the mother and her husband in their new residence.[32] The paternal grandmother went to their house, without notice or invitation, to interrogate the mother’s neighbours and take photographs of the premises. Her conclusion about the unsafety of the house was formed even though she had not inspected its interior. She refused to be reassured by the police, who were called to intercede, that the premises were satisfactory.[33]

    [32] Paternal grandmother’s affidavit, para 141

    [33] Exhibit M1

21. The paternal grandmother did alternatively offer to allow the child to see the mother at the home of the maternal great grandparents on the Central Coast, but that was difficult for the mother because she has no drivers licence, her husband was not freely available to transport her because of his work commitments, and public transport by train and bus would have been highly inconvenient for the mother with H in her company.

22. The paternal grandmother was either so presumptuous that she did not realise the Court’s orders did not permit her to exert such unilateral control, or she did realise, but was so arrogant she did not care.

23. The paternal grandmother denied the proposition in cross-examination that she was only prepared to allow the child to see the mother on her terms, but that is precisely the inference that most strongly arises from the evidence.

24. The orders of December 2010 were re-established as the binding parenting regime in May 2011, but it was not long before the paternal family’s dissatisfaction arose again.

25. From about June 2011 the paternal family began to form the belief that the child was sexually abused within the mother’s household. They could not be sure of the perpetrator, but suspected the mother’s husband.

26. The paternal grandmother deposed that she was advised by staff at the Department in August 2011 to contact her solicitor “to stop visits [of the child to the mother]” until the matter was “sorted out”.[34] In any event, the paternal grandmother did not stop the child’s visits to the mother until November 2011, when these proceedings were contemporaneously commenced by her solicitors because she perceived the Department had done nothing.[35]

    [34] Paternal grandmother’s affidavit, para 107

    [35] Single expert report, page 3

27. In December 2011 the paternal grandmother did offer to resume the child’s visits to the mother, but only upon condition that the visits occur at a public venue on the Central Coast on Thursdays. The offer was not accepted because of the mother’s inability to drive, the unavailability of her husband to drive her because of his work commitments, and the inconvenience of public transport from L Town when she also had H in her care. Again it was a case of the paternal grandmother unilaterally dictating conditions.

28. These proceedings were conducted on the basis that the paternal family’s belief that the child was at risk of sexual abuse in the mother’s care was honestly held, but evaluation of the evidence demonstrated that their belief was erroneous and unreasonable. The concessions ultimately made by the paternal grandmother and father were frank acknowledgement of that. They earlier chose to ignore professional medical advice that the child’s presentation and behaviour was susceptible to benign explanation.[36]

    [36] Paternal grandmother’s affidavit, paras 81, 103; Single expert report, page 20

29. Whilst the paternal family held to their erroneous belief, the child was frequently exposed to their discussion of it. Although the paternal grandmother initially denied that had occurred, she was impelled to admit it when confronted with the evidence. I accept that the paternal grandmother spoke openly in the presence of the child about the sexual abuse allegations, her concerns about the mother, the child’s aberrant behaviour, and the proceedings generally to many people, including staff at the child’s pre-school,[37] the single expert,[38] the child’s medical general practitioner, staff at the hospital, and the child’s paediatrician.

    [37] Affidavit of Ms K, paras 61, 62, 65

    [38] Single expert report, page 3

1. The paternal grandmother said that her discussions with the child’s medical providers occurred as a consequence of her merely answering questions posed to her directly by those providers in the presence of the child. However, the single expert said in cross-examination that was not a satisfactory justification, and further, explained how her willingness to embark upon such discussion is indicative of the freedom with which those topics were discussed in the child’s presence within the paternal family home.

2. The single expert also explained how the child’s exposure to such conversation was potentially harmful to her, but the paternal grandmother did not need to hear that explanation because she already knew. Before the single expert gave evidence, the paternal grandmother admitted during her cross-examination that it “would not be very good” for the child to be exposed to such conversation because it “could hurt her”.

3. The paternal grandmother also sought to thwart the mother’s visits with the child at her pre-school, even though the orders made consensually in December 2010 expressly contemplated such visits occurring.[39] The paternal grandmother admitted she completed the child’s enrolment at one pre-school in a manner intended to imply that staff should not permit the mother to visit the child at the pre-school. She also quizzed the staff at the pre-school about the nature of the interactions between the mother and the child at the pre-school,[40] even though it was quite impossible for the child’s safety to be imperilled by the mother at the pre-school.

   [39] Order 34 made on 1 December 2010

   [40] Affidavit of Ms K, para 68

4. The paternal grandmother was also forced to concede, when confronted with incontrovertible records, that she had occasionally signed the child’s entry into the pre-school under the surname “Thornton” instead of “Machey-Thornton”, in clear defiance of the former orders which restrained the parties from changing the child’s hyphenated surname.[41]

   [41] Order 37 made on 1 December 2010

5. The mother contended, in the face of such a regrettable history, that the Court was bound to find the paternal grandmother, and inferentially also the father, had no willingness or capacity to facilitate and encourage a close and continuing relationship between the child and the mother. It was further contended that the desirability of, firstly, retention, and secondly, development, of that relationship demanded reversal of the child’s residence.

6. The paternal grandmother had little option but to concede how the paternal family’s attitude and behaviour had the potential to impair the child’s relationship with the mother, with consequent detriment to the child. However, it was contended for the paternal grandmother, with the father’s tacit approval, that their attitudes had evolved during the course of the trial because the process opened their minds to important considerations of which they had previously been ignorant. That submission appeared to have merit. The paternal grandmother and father each seemed embarrassed by revelations in their cross-examination and each seemed swayed by the force of the single expert’s evidence. A poignant example of their willingness to shift position was their eventual abandonment of the sexual abuse allegations as unmeritorious.

7. When the paternal grandmother conferred with the single expert in April 2012, her opinions about the nature of the child’s interaction with the mother were quite fluid. She thought it would be safer for the child not to see the mother at all, but thought their interaction should at least be supervised, although she was prepared to abide by the single expert’s judgment on the matter.[42] She perceived the risk of sexual abuse justified the imposition of supervision, but once convinced during the trial that no such risk existed, she proposed final orders which enabled the child to spend unsupervised time with the mother in accordance with the advice of the single expert. So did the father.

   [42] Single expert report, page 7

8. I am persuaded that the paternal grandmother and father probably have genuinely altered their attitudes towards the mother and their adherence to the Court’s orders. I am satisfied they will probably not continue to act in ways which thwart the child’s relationship with the mother if the child continues to reside with the paternal grandmother. If my conclusions are wrong then, no doubt, the mother will instigate contravention proceedings for any material breaches of the Court’s orders and the point will then have been reached where one of the few options available to the Court would be removal of the child from the clutches of the paternal family so she may live with the mother (see Re David (1997) 22 Fam LR 489 at 506-507).

9. As the single expert correctly observed, “ongoing discord” between the paternal family and the mother will “negatively impact” upon the child.[43] The danger of the child being psychologically harmed by the paternal family is readily identifiable if they do not honestly embrace the mother as an important figure in the child’s life.

   [43] Single expert report, page 18

10. Even though the parties mutually regard the child as bright, happy and well-adjusted, the child’s behaviour has not reflected their perceptions of her adjustment and advancement.

11. Previously, the paternal grandmother was sufficiently concerned she obtained a referral from a general medical practitioner to consult a paediatrician about the child’s persistent sleep disruption.[44] More recently the child has defaecated and urinated in her pants, even though she has been toilet trained since early 2011, and acted with uncharacteristic defiance and aggression.[45] The child has also expressed a wish not to visit the mother and demonstrated considerable unsettlement upon her return from visits to the mother.[46]

    [44] Paternal grandmother’s affidavit, paras 104, 106; Exhibits ICL1, ICL2, ICL3

    [45] Paternal grandmother’s affidavit, paras 170-173, 181-182, 188, 197-198

    [46] Paternal grandmother’s affidavit, para 176, 180, 205-206, 210, 215, 218

12. The paternal grandmother understandably expressed alarm about such developments, but was previously unable to discern the reason for it, beyond identifying a correlation between the behaviour and the child’s visits to the mother.[47]

    [47] Paternal grandmother’s affidavit, paras 188, 191-192, 198, 236

13. As the single expert explained, the child’s behaviour has nothing to do with the competence of the mother as a parent and everything to do with the child’s heightened anxiety about what is occurring in her life.

14. According to the single expert, all of the child’s symptoms described by the paternal grandmother were “consistent with a distressed child” – in fact, a highly distressed child – and identification of the sources of her stress is essential to the paternal family’s enlightenment and improvement in their relations with the mother.

15. The paternal grandmother admitted in cross-examination that the child’s disturbance “could be due to the to-ing and fro-ing [between households]”, but that was just one plausible explanation.

16. The single expert offered a more expansive and compelling explanation. The paternal grandmother is a “very anxious person” and has been worried about the child’s safety in the care of the mother. It is likely the child is attuned to the paternal grandmother’s anxiety about her visits to the mother and so her own anxiety manifests at those times. The child also has a “terrible history” of disrupted attachments with parental figures and has been enrolled at four separate pre-schools in her short life, which has been very unsettling for her. To compound the problem, the child has lived in the household in which the paternal grandfather slowly died from cancer and has therefore been exposed to the grief of the paternal family. The emotional load on the child has been enormous and it would be glibly superficial to think otherwise.

17. The child’s anxiety is accentuated by the inclination of the paternal family to question her about her experiences in the mother’s care. The paternal grandmother confirmed she had been warned by both the single expert and staff of the Department to desist from questioning the child. In fact, the staff at the Department actually warned the paternal grandmother to desist because it would “place [the child] at risk” and “may lead to removal of the child from her care”.[48] The paternal grandmother’s denial of the bluntness of that warning was false.

    [48] Exhibit ICL4

18. The resonance of the child to the paternal grandmother’s anxiety was eloquently proven by the evidence given by the father. He concurred the child was unsettled upon her return from the mother to them, but he found the child settled more quickly if she spent time with him and his new partner away from the influence of the paternal grandmother. Inferentially, the paternal grandmother’s fretfulness stimulates a similar reaction in the child.

19. The father’s emerging realisation of the potential harm to the child was evident during his cross-examination. He impressed as genuinely desiring and intending better emotional support for the child, but frankly conceded he did not know how he could prevent the paternal grandmother and paternal great grandmother from continuing to question the child if they were inclined to do so privately in his absence. I am satisfied he will desist from questioning the child himself and would at least protest if others did it in his presence.

20. Although her concessions were not as frank as the father’s, I am also satisfied the paternal grandmother now possesses improved insight into the inadvisability of questioning the child and thereby betraying to the child her own anxiety.

21. However, the paternal great grandmother remains utterly ignorant. She openly admitted she disavows the paediatrician’s advice that the child’s behaviour is not likely linked to sexual abuse, staunchly believes the child was sexually abused within the mother’s home and cannot be persuaded otherwise, and sees no harm in continuing to question the child about her behaviour and her experiences with the mother.

22. When directly asked by the paternal great grandmother, the child finds it necessary to lie by denying she enjoys her time with the mother. The paternal great grandmother uncritically accepts the literal truth of such absurd denials. She cannot understand the child feels pressured to lie in order to provide an answer the child perceives will please her. Whether or not the untruthful answer actually does please the paternal great grandmother is not to the point. The child’s perception is the critical issue.

23. Notwithstanding concerns about the risk of psychological harm to the child with the paternal family home, the evidence of pivotal importance is the child’s primary attachment to the paternal grandmother, who is now her psychological mother, and her subsidiary secure attachments to the father and paternal great grandmother. Although the child’s relationship with the mother is important, significant, and valuable (see McCall v Clark (2009) 41 Fam LR 483 at 507-510), that relationship is presently less meaningful to the child than the relationships she enjoys with those members of the paternal family.[49]

    [49] Single expert report, page 17

24. Stability and security is vitally important to the child because of the chaos to which she has been exposed in her short life. Rupture of the child’s residential relationship with the paternal grandmother would run the “significant risk” of compromising the gains she has recently achieved. The eventuality of that risk would inevitably result in “significant psychopathology in the child and later the adult”.[50]

    [50] Single expert report, page 18

25. I am satisfied the mother now presents as a much more capable parent than she did when the prior proceedings were on foot, about which the single expert readily agreed, but that only makes her a more viable residential option than she was, not necessarily a preferable one.

26. Importantly, H appears to have thrived in her care, as the single expert noted.[51] I am satisfied H’s progress is due largely to the efforts of the mother and she has thereby demonstrated her practical parenting skills. The paternal grandmother was still so cynical as to wonder in cross-examination whether H’s progress was due to the efforts of the mother’s husband rather than the mother, which seemed a bizarre response when she still at that time adhered to the belief that the mother’s husband was capable of sexually abusing the child. It is difficult to conceive how she could simultaneously think so well and so ill of him as a parental figure.

    [51] Single expert report, page 18

27. The mother has also demonstrated emotional maturity. She was able to candidly admit the advantages offered by the paternal grandmother to the child, including that she could be loving and caring, that she was the best residential option for the child in 2010, and that the child had developed well in her care. The mother also had sufficient insight to acknowledge to the single expert the difficulty the child would face through separation from the paternal grandmother, her primary attachment figure, if the child was to live with her.[52]

    [52] Single expert report, page 16

28. Significantly, improvements in the mother’s parenting capacity did not cause the single expert to abandon her opinion that the child should continue to live with the paternal grandmother. Nor did she alter her opinion even when confronted with both the historical antipathy displayed by the paternal family towards the mother and the prospect of the paternal family’s continued exposure of the child to psychological harm in the future. It only drew the plaintive response of “poor [child]” from the single expert.

29. Subject to observance of the governing legislative provisions, the decision about the child’s residence in these proceedings really distils to the comparison of two countervailing considerations – first, the certain psychological harm the child would suffer if wrenched from the primary care of the paternal grandmother to live with the mother, and second, the risk of the child suffering psychological harm if she remains living with the paternal grandmother and the paternal family do not immediately adjust their attitudes by promoting the child’s relationship with the mother.

30. Ultimately, I am not presently satisfied that avoidance of the latter risk justifies ensuring the former certainty.

Parenting orders

1. The presumption under the Act of equal shared parental responsibility in respect of a child applies only to the parents of the child (s 61DA). Relevantly in these circumstances, the presumption does not include the paternal grandmother.

2. All parties and the Independent Children’s Lawyer agreed that the presumption of equal shared parental responsibility was not displaced, pursuant to operation of s 61DA(2) of the Act, because the allegations of sexual abuse were abandoned. There were no allegations of any other forms of abuse of the children and there were no allegations of family violence.

3. The parties and the Independent Children’s Lawyer uniformly contended that the presumption of equal shared parental responsibility was rebutted by the evidence, which necessitated a finding that the child’s best interests were served by the allocation of some form of parental responsibility other than equal shared parental responsibility to the mother and father (s 61DA(4)). However, there was disagreement about to whom parental responsibility should be allocated and the reasons why.

4. The mother and Independent Children’s Lawyer both argued for the mother, paternal grandmother, and father to have equal shared parental responsibility, it being contended that the child’s best interests were served by the mother participating in decisions of major long-term importance to her.

5. The paternal grandmother and father both contended the allocation of equal shared parental responsibility should be confined to only the two of them, to the exclusion of the mother. They submitted such an outcome was in the best interests of the child for several reasons; first, parental responsibility was consensually allocated to only them when orders were last made in December 2010,[53] because that was the best order at that time; second, the mother’s relationship with the paternal family has been so highly conflicted that including the mother in the allocation of parental responsibility would turn the arrangement into “a three-ringed circus”; lastly, the mother conceded she experienced anxiety speaking over the telephone with others, let alone members of the paternal family with whom her relationship has been acrimonious.

   [53] Order 19 made on 1 December 2010

6. The mother, rather theatrically, said she was fearful for her life when around the paternal grandmother, whom she believed had the capacity to kill her. Such fear developed from the manner in which the paternal grandmother reacted towards her at changeovers of the child. The mother was disinclined to ever speak to the paternal grandmother again on any matter unrelated to the child. She could not countenance the prospect of them ever being on friendly terms again because she is intimidated by her.

7. Even if the mother’s feelings are honestly held, her lines of communication with the paternal family have not closed. Her husband was co-opted to act as an intermediary with the paternal family and that strategy has generally been successful. The mother has also demonstrated her ability to communicate with the paternal grandmother in writing, and her desire for equal shared parental responsibility signals her willingness to continue doing so. The paternal grandmother introduced a communication book when changeovers began to occur at the contact centre. The mother was initially resistant to its use, but then re-considered and adopted it as a good idea. It has been used successfully ever since and the mother has found it beneficial. Neither the paternal grandmother nor the father contended the communication book had been disadvantageous.

8. The father said in cross-examination he had left communication concerning the child to the paternal grandmother and the mother, but in the future he was “more than willing” to speak with the mother and her husband. Nonetheless, he remained pessimistic about the prospect of their agreement on contentious issues.

9. For her part, the paternal grandmother was bereft of ideas about how her communication with the mother could be improved, but she acknowledged it would also take effort on her part for any improvement to occur.

10. Given the mother’s willingness to communicate personally with the paternal family in writing, or otherwise through the conduit of her husband, and the willingness of the paternal grandmother and father to improve their communication with the mother, there seems no reason why the three of them should not have equal shared parental responsibility for the child. The exercise of such parental responsibility will entail the exchange of information about the child, which may be facilitated by continued use of the communication book, and their occasional consultation over matters of major long-term importance to the child, which can also be achieved in written form through emails and the like.

11. Since the evidence warrants an order that the child continue living with the paternal grandmother, it is logical and necessary for the paternal grandmother to be included in the allocation of equal shared parental responsibility for the child. It would be absurd for the residential carer not to be included. However, having regard to the exclusionary policy employed by the paternal grandmother against the mother over the last two years, it is also important to include the mother in the allocation of equal shared parental responsibility. The Court should not make an order which facilitates the continued marginalisation of the mother in the child’s life.

12. I accept the single expert’s evidence that the child has experienced a lamentable history of disrupted attachments, but has now formed a primary attachment to the paternal grandmother, which should not be compromised by her removal from the care of the paternal grandmother without very good reason. I also accept the single expert’s opinion that no such reason currently exists.

1. There does remain a real risk of the child sustaining psychological harm by continuing to live with the paternal grandmother. Such harm would occur if the paternal family continue to believe the child was sexually abused in the mother’s care and continue to interrogate the child about her experiences with the mother, because the child will become inculcated with the belief that there is good reason to be fearful or suspicious about the mother and those associated with her. Her apprehension will incrementally increase to the point where she will likely become resistant to spending time with the mother and her relationship with the mother will then wither. That will cause the child to doubt her own worth, lose self-esteem, and compromise her ability to socialise with peers. She will almost certainly mature into an adult with deteriorated psychological health than by comparison with the adult she could be if she maintains healthy emotional relationships with all the important adults in her life.

2. That is a significant risk which should not be lightly disregarded. However, during the trial the paternal grandmother and father both showed some acquisition of insight, which permits an inference that the risk is attenuated to some marked degree.

3. I agree with the single expert’s ultimate assessment that, presently, the child’s interests are likely to be more deleteriously affected by removing her from the care of the paternal grandmother to live with the mother. The rupture of her primary attachment to the paternal grandmother in the context of her past chaotic care would be an irremediable assault upon her psychological health.

4. The single expert opined that, absent any unacceptable risk of harm to the child in the mother’s care, and I find that there is no such risk, the child should spend regular and predictable time with the mother.

5. The single expert recommended that the regime of interaction between the child and the mother should be graduated because of the reported existing anxiety of the child and the importance of avoiding the child’s confusion about the identity of her “home”. The single expert recommended the exercise of caution, by retardation rather than acceleration of the expansion of the regime.

6. In light of that advice, each of the parties and the Independent Children’s Lawyer proposed graduating regimes, albeit graduating with different rapidity. The proposal of the mother[54] moved at a faster rate than that proposed by the Independent Children’s Lawyer,[55] whose proposal moved at a faster rate than that proposed by the paternal grandmother and father.[56]

   [54] Exhibit M5, Order 6

   [55] Exhibit ICL5, Order 6

   [56] Exhibit PGM3, Order 5

7. The orders strike a reasonable balance between the proposals of the parties and the Independent Children’s Lawyer, and also a balance between the conflicting needs to graduate the regime carefully but avoid undue complication in the orders which would be fertile ground for further disagreement.

8. The single expert advised in her report that visits by the child to the mother should initially occur once or twice per week,[57] but in cross-examination she said the visits should initially occur fortnightly. The discrepancy was never satisfactorily explained. The paternal grandmother and father seized upon the single expert’s recommendation in cross-examination,[58] but that was rejected by the mother and Independent Children’s Lawyer, who both proposed weekly visits,[59] consistently with the recommendation in the single expert’s report.

   [57] Single expert report, page 22

   [58] Exhibit PGM3, Order 5.a.1

   [59] Exhibit M5, Order 6.1; Exhibit ICL5, Order 6.1

9. I concur with the view that the child is better served spending moderate periods of time frequently with the mother in order to consolidate her bond with the mother and to combat the negativity about the mother that has historically existed in the paternal family home.

10. The single expert also advised that overnight visits of the child to the mother should not begin contemporaneously with the child’s commencement of school, but should rather commence either well before or well after that time. It has not yet been decided whether the child will commence school in the 2014 or 2015 academic year. Nevertheless, the paternal grandmother and the father proposed the commencement of overnight time when the child starts school,[60] whereas the Independent Children’s Lawyer proposed commencement of overnight time in June 2014,[61] which will be either seven months before or five months after the child starts school. The mother proposed the commencement of overnight time in December 2013,[62] which will be either two months or fourteen months before the child starts school.

    [60] Exhibit PGM3, Order 5(b)

    [61] Exhibit ICL5, Order 6.2

    [62] Exhibit M5, Order 6.2

11. The orders are generally consistent with the Independent Children’s Lawyer’s proposal, which provide for a delay of about 18 months before the child spends overnight time with the mother. That period is neither too truncated nor too protracted as an introductory period. No reason was advanced as to why the alternatives posited by the parties were preferable.

12. Although the single expert “suggested” in her report starting overnight visits two years hence,[63] the reasons given in the report for that suggestion were unconvincing. I am already satisfied with the maturity of the mother and her husband and of the solidity of their relationship. In any event, the single expert offered a quite different view in cross-examination, suggesting overnight time with the mother could begin well in advance of the child’s commencement of school, meaning she envisaged its possible commencement well before January 2014, which would be less than one year hence.

    [63] Single expert report, page 22

13. The orders expand the time spent by the child with the mother so as to eventually reach a regime under which the child spends every third weekend and half of school holiday periods with the mother. I accept the submission made by counsel for the paternal grandmother that the orders need to provide space in the child’s life for when she can independently spend time with the father, once the father establishes his own residence separately from the paternal grandmother and the child, as he plans to do within the next few years. In those circumstances the child may spend one weekend with the mother, one with the father, and one with the paternal grandmother. The orders reflect the proposal of the paternal grandmother and father in that regard.[64]

    [64] Exhibit PGM3, Order 5(c)

14. Whenever the child cannot be exchanged between the parties at school or pre-school the changeovers will occur at a public venue and the travelling will be shared between the parties. In that event, the orders require the child to be conveyed to the mother, which will be an incentive for the paternal grandmother’s compliance with the orders and a demonstration to the child that the orders are being willingly implemented by the paternal grandmother. It will represent implicit consent of the paternal grandmother for the child to enjoy her time with the mother. Such orders are more consistent with the proposals of the mother and Independent Children’s Lawyer.[65] The alternative proposal for continued use of the contact centre[66] is rejected because nobody has been content with that arrangement under the interim orders.

    [65] Exhibit M5, Orders 8-9; Exhibit ICL5, Orders 8-9

    [66] Exhibit PGM3, Order 6

15. The orders make provision for the child to have telephone communication with the parties even though no specific proposal in that regard was made by any party or the Independent Children’s Lawyer.

16. The paternal grandmother and father are each restrained from allowing the child to be in the unattended company of the paternal great grandmother, so as to avoid the prospect of her interrogating the child in the manner she admitted she had and would. Such an injunction is consistent with the recommendation of the single expert. The paternal grandmother and father were prepared to submit to an injunction requiring them to “use their best endeavours” to restrain the paternal great grandmother from questioning the child about sexualised behaviour,[67] but an injunction in those terms is not broad enough.

    [67] Exhibit PGM3, Order 12

17. The parties are also restrained from allowing the child to be exposed to any discussion related to this litigation or the former allegations of her sexual abuse.

18. The paternal grandmother and father proposed that the mother be restrained from attending the child’s pre-school.[68] Such a proposal enjoyed the support of the single expert, at least until the child was more settled and less anxious, because the time she spends at pre-school is an opportunity for her to be reprieved from the anxiety she experiences through being the focal point of conflict between the paternal family and the mother. The mother and Independent Children’s Lawyer both opposed the imposition of such an injunction, but without explaining precisely why. I am persuaded an injunction should be imposed, but only for a short finite period in order to make the order certain and prescriptive.

    [68] Exhibit PGM3, Order 9

19. The order concerning the manner in which the paternal grandmother and the mother are addressed in the presence of the child is consistent with the joint proposals of the parties and Independent Children’s Lawyer.[69] The child refers to both of them as “Mummy”, or variants thereof,[70] and the single expert recommended that the child be allowed to do so without correction.[71]

    [69] Exhibit ICL5, Orders 16-17; Exhibit M5, Orders 16-17; Exhibit PGM3, Order 20

    [70] Single expert report, pages 3, 4, 5, 6

    [71] Single expert report, page 18; Mother’s affidavit, para 62

20. The paternal grandmother and the father proposed another injunctive order, confining the use of the name “Daddy” for the father.[72] I decline to make such an order because the child also refers to the mother’s husband as “Daddy”.[73] The paternal family do not apparently see the irony or inconsistency of preserving use of the name “Daddy” for only the father, but not preserving the name “Mummy” for only the mother. Consequently, in reliance upon the single expert’s evidence about use of the term “Mummy”, similar orders are made requiring the parties to allow the child to refer to either the father or the mother’s husband as “Daddy”, or variants thereof.

    [72] Exhibit PGM3, Order 21

    [73] Mother’s affidavit, para 60

21. The order requiring the parties to ensure the child is always known by the surname “Machey-Thornton” replicates the order previously made with the parties’ consent in the last proceedings.[74] The obligation is formalised by ordering the paternal grandmother to register the child’s hyphenated surname with the NSW Registrar of Births, Deaths and Marriages.

    [74] Order 37 made on 1 December 2010

22. All parties and the Independent Children’s Lawyer proposed an order that compelled submission of the child to therapeutic counselling.[75] An order of that sort is made, but in terms more closely reflecting the proposal of the mother and Independent Children’s Lawyer. The paternal grandmother must ensure the child attends therapeutic counselling arranged by the Independent Children’s Lawyer.

    [75] Exhibit ICL5, Order 26; Exhibit M5, Order 26; Exhibit PGM3, Order 14

23. In view of the past allegations of abuse of the child, abandoned as being unmeritorious during the course of these proceedings, an order is made requiring any party who reports future abuse or suspected abuse of the child to the police or the Department to furnish to those authorities copies of the orders, these reasons for such orders, and a copy of the single expert report. That will enable investigation and assessment of any future allegations of abuse to be undertaken in full knowledge of evaluation and rejection of past allegations.

24. The Independent Children’s Lawyer and mother both sought orders compelling the paternal grandmother, father and mother to engage in counselling for a stipulated period.[76] The order was not addressed in submissions, but the Court has no power to make such unconditional final orders so no such orders are made (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]).

    [76] Exhibit ICL5, Orders 23-25; Exhibit M5, Orders 23-25

25. The remaining orders are either generally consistent with the proposals of the parties and Independent Children’s Lawyer or could not be the subject of rational opposition.

I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 14 December 2012.

Associate: 

Date:  14 December 2012