TIEM & EDWARDS

[2019] FamCA 179

FAMILY COURT OF AUSTRALIA

TIEM & EDWARDS [2019] FamCA 179

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of a child – Where a final parenting Order was made in September 2016 for the child to live with the mother and spend substantial and significant time with the father – Where the father continues to make allegations that the mother has sexually, physically, and/or emotionally abused the child – Where the mother seeks that the child live with her and spend no time with the father because he presents an unacceptable risk of harm by reason of his continued allegations against the mother – Where the Court again finds that the mother did not sexually, physically or emotionally abuse the child – Where an order for long term supervision of the father’s time with the child is not appropriate – Where the child will continue to live with the mother and spend no time and have no communication with the father other than gifts/cards on special occasions.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
McKenzie v McKenzie [1970] 3 WLR 472
Miller & Harrington (2008) FLC 93-383
N and S and the Separate Representative (1996) FLC 92-655
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363

APPLICANT: Ms Tiem

RESPONDENT: Mr Edwards

INDEPENDENT CHILDREN’S LAWYER: Trinity McGarvie

FILE NUMBER: BRC 10229 of 2014

DATE DELIVERED: 21 March 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 4 - 6 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bertone

SOLICITOR FOR THE APPLICANT: VM Family Law

FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Thiele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McGarvie Family Law Practice

it is ordered that:

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for the child B (“the child”) born in 2011.

3. The child live with the mother.

4. The father is restrained and an injunction hereby issues restraining him from spending time with the child.

5. Save as provided by this Order the father is restrained and an injunction hereby issues restraining him from communicating with the child.

6. The father be at liberty to send one card and one gift to the child on special occasions such as Christmas, Easter and the child’s birthday AND the mother be at liberty to read the card and open the gift before providing the card and/or gift to the child so as to ensure that the card and/or gift is appropriate for the child to receive.

7. The mother and father advise each other of any change to their respective residential address, email address or mobile telephone number within 24 hours of any change.

8. The mother keep the father informed of the name of any school attended by the child AND provide any authorisation requested by the school to assist the father in receiving school progress reports for the child and school photographs of the child directly from the school at his own cost.

9. Notwithstanding the mother having sole parental responsibility for the child this Order authorises the father to receive school progress reports and school photographs (at his cost).

10. The mother be at liberty to provide a copy of this Order and/or the Reasons for Judgment to the Department of Child Safety, Youth and Women (Qld), Queensland Police Service, the child’s school and/or medical practitioners but only if requested to do so by that entity/person.

11. The mother be at liberty to travel outside the Commonwealth of Australia with the child.  

12. The independent children’s lawyer be discharged.

NOTATION

A.The mother intends to facilitate the child sending the father cards and gifts from time to time as considered appropriate by the mother.

B.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10229 of 2014

Ms Tiem

Applicant

And

Mr Edwards

Respondent

REASONS FOR JUDGMENT

1. Ms Tiem and Mr Edwards are the parents of a little boy, B, who is about to turn eight. Unfortunately for B, his parents have been in dispute about him for most of his life. B is aware that he is the focus of his parent’s conflict as demonstrated by his comment to police at the tender age of six, when he volunteered that his parents were fighting over him.

2. The parents have already had a trial in this Court and a final parenting Order was made by the Honourable Justice Hogan on 12 September 2016 after a two day hearing on 7 and 8 September 2016.[1] The father’s allegations that the mother had physically and sexually harmed the child were rejected by the trial judge and an Order was made that B live primarily with his mother but spend substantial and significant time with his father i.e. alternate weekends from Thursday to Monday and Thursday overnight in the other week and half school holidays.

   [1] Both parents were legally represented during the 2016 trial.

3. That parenting arrangement would be continuing to this day but for the father’s inability to accept the 2016 decision. Almost immediately after that decision, the father was repeating the allegations he had previously made about the mother, to anyone who would listen. This conduct has continued unabated and he has made fresh allegations.

4. The child has been subjected to numerous interviews and examinations including by police, child safety officers, doctors, a psychologist and friends of the father. The father has questioned the child repeatedly, photographed various parts of the child’s body, recorded conversations he has had with the child and persists in his unfiltered accusations about the mother in front of the child.

5. Unfortunately for this child, the father has left me with no real alternative but to order the child’s time with the father cease. It is unfortunate because I have no doubt that the child loves his father dearly and will greatly miss him. The mother recognises the close father and son relationship and has done all in her power to promote and facilitate the relationship. The mother broke down during her oral evidence and expressed great sorrow for her son because of the loss he is already experiencing in only being able to see his father under the supervision of a third party. Her application to cease the child’s time with his father is one brought as a last resort to protect her son from ongoing psychological and emotional harm.

issues  

1. The parties identified the following significant issues for determination in this case:

   a)Has there been a significant change in circumstances (as that term is understood by the application of the Rice & Asplund principles) since the final parenting Order made 12 September 2016?

   b)Has the child been subjected to sexual or physical abuse by the mother or has he been exposed to emotional or psychological harm by either parent?

   c)Does the mother pose an unacceptable risk of sexual, physical, emotional or psychological harm to the child?

   d)Does the father pose an unacceptable risk of emotional or psychological harm to the child?

   e)Can either parent facilitate a relationship between B and the other parent?

proposals

1. The mother proposes that the child continue to live with her but spend no time with the father. She also proposes that she continue to have sole parental responsibility for the child but be relieved of the requirement (contained in the 2016 Order) to invite the father to express his views prior to her making a decision. The precise terms of the order sought by her are set out in exhibit 10.

2. The father proposes that the child live with him and spend time with the mother dependent upon whether or not I find the mother poses an unacceptable risk of harm to the child. If the mother is found to pose an unacceptable risk to the child the father proposes that he have sole parental responsibility and that the mother spend supervised time with the child but if the mother is found not to pose an unacceptable risk of harm to the child the father proposes an order for equal shared parental responsibility and that the mother spend unsupervised weekend time with the child. The precise terms of the order sought by him are set out in exhibit 9.

3. The independent children’s lawyer (“ICL”) recommends the child continue to live with the mother and spend no time with the father and supports the continuation of sole parental responsibility to the mother and the removal of the consultation process. The precise terms of the order sought by the ICL are set out in exhibit 8.

background

1. Before turning to consider the issues, I note by way of background that the mother is 27 and employed in the retail industry. The mother was born in South East Asia and travelled to Australia on a student visa in 2009. While the mother has some comprehension of the English language both spoken and written, she was assisted throughout the hearing by an interpreter.

2. The father is 49 and unemployed. He has been in receipt of a disability support pension since about 2003. The father has three other children, Ms W (a female whom the father thinks is about 21 and with whom he has had no contact since she was a baby), Mr U aged 19 whom the father did not see when he was growing up but occasionally sees now “out and about” and G aged eight or nine whom the father says he can see anytime he likes but has seen only about 10 times over the last 12 months. Historically it seems the father has had little to do with G. It does not appear that the father has financially supported any of his children. Late last year the father received a compensation payment of $40,000. None of that sum was paid in child support. 

3. The father’s intellectual capacity has been assessed as borderline and he has only a very basic capacity to read. The father was permitted to have the assistance of a ‘McKenzie friend’[2] during the trial to assist him by taking notes, framing questions and reading documents as required.

   [2]McKenzie v McKenzie [1970] 3 WLR 472.

4. The mother and father met in July 2010 when she was 19 and he was 41 and they married later that same year. They separated in March 2014 and divorced in 2015.

5. The mother has a boyfriend named Mr L with whom she commenced a relationship in October 2018. They do not live together full time. They have known each other for about two years. The mother said she did not want him involved in her family law matters and he was not a witness in the case.

6. When the parents separated, B initially lived with the mother until an Order was made in the Federal Circuit Court that B live primarily with the father and spend every weekend with the mother. B continued to attend day care three days each week from 8.30am to 5.00pm when living with the father.

7. After the 2016 Order the child B commenced to live primarily with the mother but spent substantial and significant time with the father.

8. By arrangement, the child stayed with the father for a little over a week commencing 11 May 2017 while the mother travelled to P Town. The father refused to return the child on 19 May 2017 and a recovery order was made on 1 June 2017. 

9. On 3 February 2018 an Order was made by the Senior Registrar of the Family Court of Australia suspending the father’s substantial and significant time with the child and requiring the father’s time with the child be supervised at T Group for two hours each fortnight. The father continues to spend fortnightly supervised time with the child. 

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[3]

   [3]Family Law Act 1975 (Cth), s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons; and

   c)The allocation of parental responsibility for a child.

3. The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

6. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

7. Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

8. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[4] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[5] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof.” ^[6]

   [4] M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

   [5] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.

   [6] See Johnson & Page (2007) FLC 93-344, [68], [71].

9. The Court is not required to make findings of fact on every factual dispute raised by the parties.[7] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[8]

   [7]Baghti & Baghti [2015] FamCAFC 71.

   [8]M & M (1988) 166 CLR 69.

10. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

11. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

12. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

13. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

14. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

15. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[9]

Has there been a significant change in circumstances (as that term is understood by the application of the Rice & Asplund principles) since the final parenting order made 12 September 2016?

The ‘rule’ in Rice & Asplund[10]

[9]Banks & Banks (2015) FLC 93-637.

[10] (1979) FLC 90-725.

1. The so-called rule in Rice & Asplund is a reference to the jurisprudence developed over the past forty years in this jurisdiction, namely, of attempting to place some limitations on repeated hearings involving the same parties and their children. Generally speaking the Court will need to be satisfied that there has been a change of sufficient gravity that warrants variation of an earlier ‘final’ order. [11]  

   [11] See Poisat & Poisat(2014) FLC 93-597 for a recent discussion.

2. However, as s 65D(2) of the Act makes clear, parenting orders can be varied even though they may be described as ‘final’. The best interests of the child remains the paramount consideration although not the only consideration.[12]

   [12] Miller & Harrington(2008) FLC 93-383 [72].

3. Axiomatically, the rule in Rice & Asplund has greater impact if applied at a preliminary stage of the proceedings rather than after a full hearing (as in this case) but even so, two particular public policy issues remain of significance, firstly, to guard against one judicial officer simply substituting her or his view for that of the original judge and secondly, to have a rule that can be relied upon to discourage endless litigation even if applied in that particular case at the conclusion of the full hearing.[13]

   [13] SPS and PLS (2008) FLC 93-363.

1. In the current proceedings both parties and the ICL submit that substantive changes should be made to the 2016 ‘final’ Order.

2. I am satisfied there has been a significant change in circumstances within the meaning of the guidelines enunciated in Rice & Asplund and it is in the best interests of the child that the 2016 Order be discharged. The child will nevertheless continue to live with the mother and she will continue to have sole parental responsibility.

3. The father’s conduct, namely, his failure to accept the decision of the Court in 2016 that the child should live with the mother and that the child is not at risk of harm from her, and his exposure of the child to those views and his active involvement of the child is his attempts to gather evidence are the primary evidentiary reasons for discharging the 2016 Order.  

Has the child been subjected to sexual or physical abuse by the mother or has he been exposed to emotional or psychological harm by either parent?

1. The father maintains a stated belief that the mother has engaged in sexually inappropriate conduct with the child including in the company of a female friend and has given the child what the father describes as ‘love bites’. The allegations bear a striking resemblance to allegations made during the 2016 trial and rejected by Hogan J.

2. In relation to the ‘love bite’ allegations Hogan J said:

   55.I do not accept that the term ‘love bite’ is an appropriate term to describe the bruising [B] presented with on this occasion. That term has a clear connotation which I do not consider apposite. I do not accept that, in kissing [B] on the chin – as the mother admits she did – the mother acted with any sort of sexual intention or for any sort of sexual gratification. Given these conclusions, the more appropriate term to describe what is captured in the photographs the father asked [Ms E] to take  (after he had already taken some on his iPad) is ‘bruises’.

   …

   58.I accept the mother’s evidence about how [B] came to have the bruise on his chin: that is, I accept that she kissed him there in something of a gnawing manner and that she did not initially appreciate that she had bruised him. I also accept that, at the time, [B] did not indicate that she was hurting him. I accept that, when she saw the mark she had caused, she apologised to [B].

3. In a Notice of Risk of Child Abuse filed by the father on 1 June 2017 the father provides the following particulars of alleged abuse (as per original):

   (1)That between 6 September 2016 and 8 May 2017, the child whilst in the care of the applicant mother [the mother] has inserted her finger up the child’s bottom. It is further alleged that between the same dates the applicant mother and her girlfriend, [Ms M], would have the child born in 2011 in the shower with them. They would both play with is wee wee (penis) and encourage to him play with their boobs (breast). It is further alleged that they would place his hands between their legs in the virgina area and have him play with them. These incidents have occurred on a number of occasions.

   (2)That on 23 December 2016 about 6.30 pm at a Shopping Centre in [C Town], in the kitchen area at a restaurant a [male] person pulled down [B’s] pants in front of other people.

   (3)That on 6 March 2017 approximately 2.30 pm I picked [B] up from school and took him home, while he was having a bath I noticed bite marks and bruises on his left elbow. I took [B] to the [C Town] Hospital to have these verified and documented. The doctor examined [B], took photographs and advised me to take him to the police station and have it recorded and documented.

   (4)4 May 2017 Thursday after picking [B] up from school, we went home and while [B] was having a bath, I noticed a bruise on his chest and on his back. I asked [B] how he got the bruises. He said, “mummy still giving me love bites daddy”. These bites would have been about the size of a 20 cent piece.

   (5)26/5/2017 I took [B] for an appointment with [Dr N] in relation to the bite marks on his left elbow. As a result of his consultation [Dr N] provided a letter.

4. The Notice of Risk also provides the following particulars of family violence:

   (1)Hitting the child across the face;

   (2)Swearing at the child.

What evidence does the father rely upon for his fresh allegations of abuse?

1. Doing the best I can, the following evidence appears to form the basis of the father’s current allegations of abuse made against the mother.

The father’s evidence

1. The father says that during a recorded telephone call with the child on 4 October 2016 the child said “Mummy is naughty daddy, she is hitting me and swearing at me.”

2. On 6 March 2017, the father says he observed bite marks and bruises on the child’s left elbow.

3. On 9 April 2017, the father says he observed bruises on the child’s left leg and bites on his right leg.

4. The father says that on 4 May 2017 he noticed a bruise on the child’s chest and back and asked the child how he got the bruises and the child responded – “mummy still giving me love bites, daddy”.

5. On 5 May 2017 during a telephone call the child is said to have whispered to the father that the mother had slapped him across the face. I note that all of the father’s calls were recorded at this time but no recording of this alleged statement was produced.

6. The father was also witness to events referred to in hospital records and by the psychologist (Mr O) and at his friend Mr Q’s home.

Ms R

1. On 8 September 2016 the father received a telephone call from a friend, Ms R, who had been looking after the child during the first trial which occurred on 7 and 8 September 2016. The father says that Ms R told him that during a telephone call between the child and the mother (as per original):

   1.    … While [B] was talking to his mother all she could hear was [B’s] raised voice and yelling, “NO I don’t want to live with you, I want to live with daddy”. She stated that after the call had been terminated, she asked [B] what was wrong. [B] replied, “I don’t want to live with mummy she hurts my bum bum, she puts her finger in my bum bum”.

2. Ms R affirmed an affidavit relating to this telephone call and relevantly says that it occurred on 8 September 2016 and that:

   4.    I left [B] sitting on the lounge talking to his mother.

   5.    I could hear [B] starting to cry and saying, “No I don’t want to live with you I want to live with my daddy” and repeated “No I want to live with my daddy”. He was crying and very upset.

   6.    I then went over to [B] he had put my phone on the lounge, I checked my phone to see if it was still on but [B] had disconnected the call.

   7.    [B] was very upset shaking and crying. I asked [B] what was wrong and he said, “I don’t want to live with mummy, she hurts my bum bum.” I said to [B] “why does she smack your bum bum?”. He said, “No her finger in my bum bum, mummy  she hurts me”. I was so shocked and I didn’t know what to think after [B] had told me that. He was crying and coughing and had worked himself up to a state of where he was inconsolable, I was worried he might have an asthma attack.

3. The mother says that she did have a conversation with B while he was staying with Ms R on or about 8 September 2016 but says that at no time during the call was he upset or crying and at no time did he say that he did not want to live with her.

4. During cross-examination Ms R made a number of concessions:

   a)B did not cry while on the phone to his mother (contrary to her affidavit evidence);

   b)She did not overhear him say anything to his mother (contrary to her affidavit);

   c)The child started to cry after the call to his mother and she asked him what was wrong (contrary to her affidavit);

   d)The father had already told her about his concerns about sexual abuse prior to the telephone call;

   e)She telephoned the father in tears after her conversation with the child;

   f)The father asked her to write down what she had heard because he wanted to use it in evidence in court;

   g)The father asked her to tell the family report writer what she had heard the child say and this request was made in front of the child;

   h)The father asked her to accompany him to the family report interviews which occurred on 11 December 2017 and she travelled to Brisbane with the father and child from C Town (a journey of about four hours);

   i)She and the father discussed the family report in the car but not “in any detail”;

   j)She did add to her allegation to the family report writer that the child was screaming because that sounded more emotive.

5. Ms R was interviewed by Mr D, the family report writer, on 11 December 2017. She identified herself as a long-time friend of the father and said she looked upon him as a brother and is reported to have told Mr D the following:

   85. [Ms R] recalls that she was looking after [B] in September 2016 when the father was in Brisbane for the purpose of Court.  She claims that [Ms Tiem] telephoned the child to say hello and sometime thereafter [B] started, “Screaming, said I don’t want to live with my mommy”.  She states that the child subsequently declared that his mother and her girlfriend did ‘things’ to his bottom when he was in the shower.  She claims that she was distressed by this and later advised [Mr Edwards] by telephone.  [Ms R] added that, at the time, “I knew he had had hickeys”.  I understood her to be referring to [B] and the reported love bites.

6. It is immediately apparent that if the information attributed to Ms R is correct i.e. that the child told her that his mother and girlfriend did things to his bottom when he was in the shower, this is not something mentioned by her in her affidavit prepared only two weeks after the relevant phone call and not something she mentioned to the father on the evening of the phone call. Ms R could not remember whether or not she had said this to the family report writer during cross-examination i.e. that she had attributed that information to the child but confirmed it was something she was told by the father.

7. Whatever might be the true position regarding the latter point, I do not regard Ms R as an independent source of evidence likely to be forensically significant to any finding that the mother poses an unacceptable risk of abuse. Even if the child spontaneously made the statement attributed to him by Ms R (in her affidavit) i.e. “No her finger in my bum bum, mummy she hurts me” (which I consider unlikely having listened to a recording of his limited verbal skills as at 4 October 2016) there are explanations other than sexual abuse to account for the statement e.g. applying cream to the child’s bottom to treat an irritation.

8. Ms R’s evidence is nevertheless of significance (but not for the reasons thought by Ms R or the father). Ms R’s evidence confirms that the child was exposed to conversations relating to the father’s concerns that the child is at risk from his mother e.g. Ms R’s tearful phone call to the father on the evening of 8 September 2016 and the conversation between Ms R and the father, in the presence of the child, on their way to the family report interviews. Whatever the caveat “not in detail” might mean I find it more likely than not that there was discussion about the father’s allegations against the mother and about what Ms R would say during her interview with the family report writer.

Recorded telephone conversation 4 October 2016  

1. On 4 October 2016 the father recorded a telephone call between himself and the child. In his May 2017 affidavit the father quotes the child as having said – “Mummy is naughty daddy, she is hitting me and swearing at me”. Having listened to the fifteen minute recording I conclude that:

   a)The child did not make the statement alleged by the father;

   b)After an unintelligible comment by the child the father responds – “hitting you?” and the child responds “yeah and swearing”;

   c)The child’s verbal skills are very limited and he is very difficult to understand most of the time (even by his father);

   d)Almost immediately upon the commencement of the call the father starts to make comments indirectly critical of the mother e.g. that the father can only call at certain times and the call was not answered;

   e)The father asks the child questions about his mother that suggest the child is at risk from her or that she is not doing what she should be, for example:

   i)What has mummy been doing?

   ii)What has mummy been doing to you?

   iii)Isn’t mum reading you the reading book?

   iv)Mummy hasn’t been doing anything naughty to you hey?

   v)She hasn’t been touching you anywhere she shouldn’t be?

   f)The father makes statements to the child suggesting that the child is at risk from the mother, for example:

   i)You said mummy has been naughty (such a statement is not heard from the child);

   ii)You make sure your mummy does not hurt you.

   g)The father demonstrates no capacity or willingness to console the child when the child becomes upset. He is more intent on gathering evidence.

Mr O

1. On 14 October 2016, the father took the child to see a psychologist, Mr O. The mother was not informed despite the mother having sole parental responsibility for the child. Mr O confirmed that on each of the ten consultations that occurred up to 11 May 2017, the father and child were present throughout.[14]  Mr O did not speak with the mother at any time.

   [14] There might have been a couple of occasions in later sessions when the father was briefly out of the room talking to reception.

2. On the first consultation it is apparent that the child was exposed to the father’s account of the child having been abused by the mother. Photographs were produced by the father said to corroborate the alleged abuse. Mr O’s notes reveal that during the consultation on 14 October 2016, the father told him that the child had been sexually touched by the mother.

3. During a consultation on 15 December 2016 the father told Mr O that he was hoping to go back to court. Also during that consultation Mr O refers to the child having a “couple of burn marks on his arm”. During cross-examination Mr O initially sought to provide some basis for his opinion that the marks were burns by saying he had received some “basic medical training” when he worked as an ambulance officer. He eventually conceded that he was not qualified to offer an opinion. There is no evidence from an appropriately qualified expert that the child has ever suffered burns despite the father’s regular attendance with the child at both the C Town Hospital Emergency Medicine Department and the Medical Clinic. The child’s day care records on a date proximate to this date refer to the child having had a “slide burn” from playing with the father on the weekend described as an “abrasion”.

4. On 12 January 2017 Mr O’s notes state, among other things, that B said:

   a)One of his mother’s friends had pulled his pants down;

   b)He has to have showers with adults and other children at his mother’s;

   c)They often touch him in the groin.

5. The reference to the child’s pants being pulled down relates to an alleged incident which was not witnessed by the mother or the father but is said by the father to have happened when B was being looked after by a person while the mother was at work and the child was at a restaurant. There is no evidence about the context of the other statements attributed to the child.

6. Given the limitations on the child’s verbal capacity at the time of this consultation with Mr O and the exposure of the child to ongoing discussion about allegations and the absence of any context to the summary of what was said by the child I can place little wait on this evidence. 

7. During a consultation on 10 March 2017 Mr O says that the child showed him a photo of the mother and her partner and said “she touched my wee wee”. I find it curious to say the least that Mr O reports the child as having told him that the photo was of the mother and her partner. It became apparent during cross-examination that the photo was of two women, namely, the mother and a person known to the child as ‘[Ms M]’ (as best I can determine a reference to this person being another child’s mother) and that Mr O had made an assumption (no doubt based on what he had been told by the father) that this woman was the mother’s partner. The father would have me believe that the child just happened upon the photo on the father’s phone and decided to show Mr O and make the statement attributed to him (i.e. the child). It is more likely to have been a ‘set up’ by the father in the hope of achieving his aim i.e. having the child say something that might be incriminating about the mother. I have come to this conclusion because the same thing happened at the doctor’s surgery the previous day, 9 March 2017 when the father produced the same photo to the doctor and B was then asked questions about the photo.

8. During the consultation on 24 March 2017 Mr O says that the child spoke about the mother throwing a mobile phone at him and the father in 2014 and that he had recently found the broken phone. The child was only 3 in 2014 and it seems improbable that he would recall, let alone spontaneously recall, such an incident, if indeed it did happen. It is more likely another example of the father exposing the child to his allegations against the mother.

9. On 11 May 2017 Mr O says that the child told him his mother had bitten him again and called them ‘love bites’. According to Mr O there was no evidence of any mark. I reject the notion that a child of six would have any comprehension of what a ‘love bite’ is and it is more likely that this is yet another example of the child being exposed to the father’s allegations.   

10. Mr O’s conduct in repeatedly seeing the child and father together and seemingly doing nothing to protect the child from exposure to allegations by the father against the mother is somewhat alarming. It certainly does not appear to meet the expectations of appropriate professional conduct. Mr O, in his oral evidence, presented as somewhat of an apologist for the father. He was a most unimpressive professional witness. It is unclear to me what professional services he provided to the child.

11. I note by way of interest that the receptionist at Mr O’s rooms seems to have a greater awareness of the inappropriateness of the father’s conduct in front of the child than Mr O. In two written notes dated 7 April 2016 the receptionist expressed discomfort about the level of information provided by the father in front of the child and that she stopped him from doing so. 

Mr Q

1. Mr Q says in an affidavit sworn on 10 May 2017[15] that on 2 March 2017 the father and the child were at his home and the following occurred:

   2 … All of a sudden [B] came over to me and started to explain to me in explicit detail by showing me what his mother and her female friend known as [Ms M] do to him in the shower. He said, “Mummy and [Ms M] do this to my wee wee”, B was rubbing hands between his legs in the crotch area.

   He then said, “mummy and [Ms M] get my hand and make me rub their wee wee, and let me play with their boobies and they hurt my bum bum, they put their finger in my bum bum”. [B] told me that a [South East Asian] man pulled his pants down in the food shop. …

   [15] Part of exhibit 1.

2. Mr Q goes on to say:

   3. I have also seen [B] with bruises and bite marks on him.

   …

   5. I have spoken to [Mr Edwards] about how [B] is being sexually abused. [Mr Edwards] has told us that he has reported all this, and it seems that nothing has been done.

3. Mr Q is a friend of the father and was well aware of the father’s allegations against the mother prior to the incident on 2 March 2017. He expresses dismay at the failure of authorities to protect the child and appeared to be very invested in the outcome of the proceedings. When cross-examined about the statements made by the child on 2 March 2017 he said that the child said it all in one go and that the child “just came out with it”. He suggested that the father was as shocked as he was by the statements made by the child. I find that unlikely.

1. I do not regard Mr Q as a reliable witness. I reject his evidence that the child made the spontaneous statement as quoted. I think it more likely that the child responded to questions or prompting or made statements as a result of repeated exposure to such things by the father. The child’s verbal skills at or around that time cause me to conclude that making the statement attributed to him ‘all in one go’ was unlikely to have been within his capabilities at the time.

Dr S

1. Although Dr S did not provide an affidavit in these proceedings the father relied upon a letter from Dr S dated 26 May 2017 (part of exhibit 1) which states that the child had been brought to see him by the father on 9 March 2017 “relating to documentation of injuries”. Dr S’s letter goes on to state:

   There was superficial bruising to his Left elbow with no loss of function of ongoing pain. The child reported he had been bitten. During that consultation [B] also reported that he was showering naked with his mother and partner. That he was touched inappropriately on the bottom and genitals and was encouraged to touch them on multiple occasions. This was freely volunteered by the child.

2. The father says that during this consultation Dr S said that he could not say for sure that the marks on the child’s elbow were bite marks. The father goes on to say:

   14.… While we were talking to [Dr S] (sic) I showed him a photo of two ladies. [Dr S] (sic) asked [B] if he knew the people in the photo. [B] replied pointing with his finger and said, “This is my mum and that’s [Ms M]”. [B] then continued telling [Dr S] (sic) that mum and [Ms M] get in the shower with him, they hurt his bum bum, they put their finger in his bum bum, they play with his wee wee, and I play with their wee wee and play with their boobies. …

3. Dr S was not made available for cross-examination.

4. When Dr S was interviewed by the Department of Child Safety he said that the child was very attention seeking of the father and when asked whether the father might be coaching the child he replied that there was certainly some encouragement from the father. 

S93A recorded police interview with child – 26 October 2017

1. On 26 October 2017 the child was again presented to police by the father and this time interviewed for about 40 minutes in a video recorded interview. In the video the child presents initially as relaxed and had no idea why he was at the police station. Even when prompted by one of the two interviewing police officers who said – “I heard that you told daddy some important things” – the child has no idea. However the child does say that his parents are fighting over him. The child is difficult to understand most of the time. He does say some words and phrases that are intelligible. Most of the questions to the child are leading in the extreme e.g. “I heard about mum and [Ms M] (reference to a friend of the mother’s apparently) touching you on the bum and wee wee … Tell me everything about mum touching your bum and willie”

2. The father submits that the things said by the child during this interview indicate that he was sexually abused in the shower. I reject that contention for these reasons:

   a)The verbal skills of the child were very limited at the time of the interview;

   b)Interviewing officers would repeat what they thought the child might have said and then asked the child for clarification;

   c)Given the child’s age at the time, such an interviewing technique is dangerous to say the least as it may cause the child to agree to something that was not factual;

   d)The child is asked numerous leading questions i.e. questions which suggested the answer;

   e)If the child was in the shower with his mother and another female friend that of itself does not indicate abuse;

   f)If the child was touched on his penis that does not of itself indicate abuse as there may have been a legitimate reason for it e.g. cleaning;

   g)The child is aware that the father is making allegations against the mother e.g. the child says that his father took photos of the ‘love bites’;

   h)The father is selective in what he submits I should deduce from the interview e.g. he submits I should reject the indication from the child that the father looks through a secret or special window at the mother and another female person in the shower but accept other statements or words indicating his penis was ‘touched’;

   i)The father’s long history of exposing the child to his allegations against the mother has contaminated the reliability of anything said by the child.

Family report

1. During the interviews for the family report on 11 December 2017 the child said that his mother and father were not friends because the mother was throwing phones at him and his father and added “We want her to stop hitting us and that’s why we went away”. He also made an unsolicited reference to having a shower with the mother when “Mum touched my privates”. When asked how old he was at the time he replied “I was a baby”. When asked why he thinks the mother was touching him he said “She was washing me but I wanted to wash myself”.

The authorities - investigations and conclusions

Hospital and medical clinic

1. According to the records tendered from the C Town Hospital the father presented at the Department of Emergency Medicine (DEM) 38 times up to 9 April 2017.

2. On 29 December 2016 the child was seen with the father due to the child’s asthma. The following note is included in the hospital record (as per original):

   Father also talked a lot about concerns regarding the mother of the child. They are currently going through a difficult divorce and the child is now living with the mother. I was told by the father that social services have been involved in the past regarding the following issues but he was unhappy with the results:

   ·The child had allegedly received “love bites” on his chin and neck from his mother

   ·The child showers with his mother and girlfriend and has been touched in an inappropriate way[16]

   ·The child has been exposed by a member of staff that works with his mother

   ·The child is not receiving his regular asthma medications at home

   [16] I note that this information was provided by the father prior to the alleged statement of the child on 2 March 2017 where the father was allegedly shocked by the child’s statement.

3. The child was examined and noted to be alert and playful and there was no evidence of any bruises or suspicious injuries.

4. On 6 March 2017 the father presented with the child at DEM at 7.15pm requesting documentation of what he suspected was a human bite mark on the child’s left elbow. The father alleged the child was abused and neglected in the mother’s care. The father informed staff that he had photographed the mark on the child’s elbow. When asked, the child said he did not know how he got the mark but then said it was from a bee. The father also alleged that the child “had not eaten all day because the mother did not pack a lunch with an ice block and that it was rotten”. The father denied making the latter statement when cross-examined. I do not believe him. The child was noted to be bright and alert. On examination of the left elbow there were noted to be healing abrasions with no discrete pattern and no tenderness on palpation. There were also noted to be two circular marks on the left wrist. The child’s whole body was examined and a few small marks/bruises were noted on the shins consistent with accidental injury. The conclusion about the mark on the left elbow was - “Unable to identify whether the mark was made by a human bite”.  Photographs of the marks on the child’s back and wrist were taken with the father’s permission. The photographs do not indicate serious injury.

5. On 9 April 2017 the father and child presented at DEM with concerns about marks to the child’s right lower leg, bruising to left knee and a mark on his nose and that they may have occurred under the care of the mother. The father also made allegations of sexual abuse at the mother’s house. The child told the doctor that the marks on his legs were from insect bites and that the bruise on his knee was as a result of a fall but he could not recall how he got the mark on his nose. The child was noted to look well and was chatty. The child was again given a full body examination including his genitals. Nothing of significance was noted. Police were informed that the father had made allegations of abuse. 

6. On 11 May 2017 the father presented at the hospital with the child with concerns about abuse in the care of the mother. The child was noted to be interactive and playful. A couple of bruises/abrasions were noted on the child’s back and neck and multiple old bruises “not in locations red flag” for abuse or neglect. A mandatory report was made because of the father’s stated concerns about abuse by the mother.

Department of Child Safety

1. On 23 May 2017 the Department commenced another investigation[17] of the father’s allegations of sexual and physical abuse and neglect of the child by the mother.

   [17] Previous investigations having been carried out and determined to be unsubstantiated.

2. As part of their investigation the investigating child safety officer, Ms H spoke to Mr K, the principal of the child’s school, on 26 May 2017. He raised no issues about the child’s presentation or behaviour but did say that he had concerns about the father’s behaviour and, in particular, the father “goes around the school and runs down the mum to anyone who would listen” and that “Dad will speak negatively about Mum every chance he gets”.  He also said that the father said that the child had a ‘love bite’ on his elbow. The mother had changed the child’s school prior to this interview and Mr K said that the father was claiming that the mother did not tell him i.e. the father, but the school had “documented to make sure she’d spoken to him”. This was a factual issue raised by the father during the proceedings with him alleging the mother did not give him notice of the change of school and the mother saying otherwise. This evidence from the school suggests the mother’s evidence i.e. that she did inform the father, is to be preferred.

3. As already noted above, Dr S considered that the child was very attention seeking of the father and when asked whether the father might be coaching the child he replied that there was certainly some encouragement from the father.

4. The Department were not satisfied that the child was at risk of harm from the mother.

5. Departmental records for 22 March 2018 note that there have been numerous allegations of sexual and physical abuse of the child by the mother which had been investigated by both the Department and police and found not to have occurred. The father was noted to be “unhappy with the unsubstantiated outcome for the sexual abuse and has threatened to go to the media with his information/story.”

Police

1. The father has taken the child to the police station on a number of occasions since the last trial. The police records dated 7 March 2017 include this information:

   [The father] regularly makes allegations against the mother and her associates of abusing [the child] however none of these have been substantiated. When asked if he has any upcoming FLC dates he stated that he does, and then said when he gets money. Under further questioning it was established that Legal Aid will not assist him any longer and that he requires money to hire a lawyer. … Rang the [C Town Hospital] after [the father and child] left the station and spoke to Emergency Dept. They advised that [the child] had presented last night. The notes indicated that they advised him that he could report the matter to Police if he would like to, however they did not tell him he must. It obviously did not meet their threshold of concern as they are mandatory notifiers to Child Safety of suspected child abuse and they did not make a notification. …

2. Again on 24 May 2017 the father attended at the police station with the child. The following note appears in police records:

   … Spoke about the info he has spoken about many times regarding allegations of sexual abuse and Family Law Court issues. No new information.

3. As noted above, the child was again presented to police on 26 October 2017 and was subjected to a recorded interview (as noted above). Police records indicate that the investigation was closed on 4 November 2017 for the following reasons:

   a)the victim child was unable to provide sufficient particulars;

   b)the information provided by the child indicates the incident occurred at his father’s residence with his father present (contrary to information provided by the father);

   c)the incident involving the ‘love bites’ appears accidental;

   d)there is insufficient or no evidence that the child was bitten, subjected to sexual acts, exposed to sexual acts by his mother and a female friend; and

   e)there are ongoing family law issues and “the complaints appear vexatious and appear to be emotionally harming the victim child”.

Conclusion about whether the mother has abused the child

1. The father said during submissions that but for the child making ‘disclosures’ and presenting with marks (to which the father has attributed some sinister meaning) he would not have taken the child to police or the Department or doctors or a psychologist. I do not accept that. The father has never accepted the 2016 decision and has not relented on his mission of trying to gather evidence that the child is at risk.

2. I agree with the assessment of Mr D that:

   19.Fundamentally the existing dispute is largely associated with the father’s repeated accusations of abusive behaviour on the part of [the mother], his efforts to garner support for his position and his lack of appreciation for the psychological/emotional impact of his conduct on the child.

   …

   22.It appears to be clear that the conflict which marks the parents’ relationship is entrenched.  Unfortunately, I have not been able to identify any grounds for optimism in regard to the potential for any positive change in that regard.

3. I reject the father’s allegations that the mother has sexually or otherwise abused the child as groundless. To the extent the child has said things that might indicate abuse I find the child has been exposed to the father’s relentless repetition of allegations. To the extent that the child may have said something initially that did not fall into that category I find that it is more likely than not that the father or other adults have misinterpreted the child and rejected what may well have been an innocent explanation because they were blinded by a belief that he had been harmed.

Does the mother pose an unacceptable risk of sexual, physical, emotional or psychological harm to the child?

1. Given my findings above it follows that the mother does not pose an unacceptable risk of harming the child in the future.

Does the father pose an unacceptable risk of emotional or psychological harm to the child?

1. Annexed to one of the father’s affidavits were two reports from specialists obtained by the father in relation to a compensation claim. The compensation claim related to an attack on the father by a former workmate in 2014 during which he was struck on the back of the head and neck on several occasions and beaten while on the ground.

2. Dr V is a neurologist who provided a report to a court in 2018. During examination Dr V did not note anything of significance other than some mild restriction to neck movements and mild tenderness over the ulnar nerve at the left elbow. An MRI brain scan did not reveal any evidence of trauma. He opined that the father’s neck and left upper limb symptoms should improve with a regular exercise program. In his view the father was capable of returning to employment as a labourer. He noted that the father was taking 120mgs of OxyContin daily which he described as a relatively big dose and opined that the father may only need to take this medication intermittently.

3. Dr X is a psychiatrist who provided a report dated in 2018.[18] Dr X noted that the parenting dispute “dominated” the father’s thinking. He said the father alleged that the child had been “beaten, abused and manipulated by the mother” and that the father repeatedly returned to the theme that he (the father) had been treated unfairly by the Family Court. The father expressed the view that there was a “conspiracy” against him involving the Court and other government agencies. Dr X described the father as being “clearly obsessed” about this theory. He opined that the father had limited insight. In his view the father had developed a psychiatric condition “which verges on a major depressive illness in response to the Family Court matters.” In Dr X’s view the father’s preoccupation or obsession with the Family Court matters were “unlikely to change in the future given that his access to his child, B, has been increasingly restricted.” Dr X considered the father’s reliance on OxyContin needed to be “rationalised”.

   [18] Although this report was annexed to the father’s affidavit filed 18 February 2019 the father said the report had not been read to him.

4. In the context of his relationship history, the father told Dr X that he was “actively on the internet talking to a ‘girl’ although the future of that relationship is uncertain”. The father also told Dr X that he was no longer seeing his son, G. At the time of his interview with Dr X the father said he was seeing a psychologist, Ms Y, and was due to see a psychiatrist at the C Town Hospital. The father gave a sad account of neglect throughout his childhood.

5. During cross-examination, the father said that he only saw Ms Y (the psychologist) once and saw a psychiatrist at the C Town Hospital (once) who allegedly told him there was nothing wrong with him. 

6. Having considered all of the evidence I conclude that the father demonstrates an inability to accept that he may be wrong about the mother. This in turn has caused him to repeatedly expose the child to his allegations about the mother and has caused the child to be repeatedly questioned, examined and photographed.

7. The father did not demonstrate any capacity to reflect upon his actions. During submissions the father was afforded every opportunity to demonstrate some insight but the father was continually ready to blame someone else, including the child. 

8. The father seems to seek out those who will support his view e.g. Mr Q, Ms Z (his McKenzie friend), Ms R and to some extent Mr O. I do not find that the father has acted with malice but he seems to have a fixated view that the child is at risk from the mother and nothing is going to dissuade him of that view.

9. It is troubling that the child uses the pronoun “we” when discussing the allegations with the family report writer. It seems to indicate, as Mr D opined, a level of enmeshment with the father, which can cause a child to lose their own identity and “compromise their own capacity to think and reason and explore and form views and things of that nature”.

10. The father does pose an unacceptable risk of psychological and emotional harm to the child.

Can either parent facilitate a relationship between B and the other parent?

1. The mother cried and said she was upset for the child having such a limited relationship with the father. She accepts the father loves the child and that the child loves his father. She said the child looks forward to the time he spends with the father. I find that the mother has come to her position (that the child should not see the father) very reluctantly. The child spent time with the father in accordance with the 2016 order until it was varied in March 2018 as a result of the father’s unrelenting conduct. The mother clearly lamented that situation for her son.

2. If the father’s time with the child were to continue, the constant undermining would also continue. It stems from the father never accepting the change in the living arrangements for the child in 2016 because prior to that the child had lived primarily with the father. The father has no capacity to facilitate a relationship between the child and the mother.

Conclusion as to what parenting order is proper

1. If the child does not have a relationship with the father there is certainly a risk that he will either idolise or demonise his father as opined by Mr D who said:

   99.In most situations it is in a child’s interests to be able to establish and maintain relationships with both parents.  That has implications in regard to such things as the child is [sic] self-concept and issues of identity.  Furthermore, it is also the case that when an established relationship between a child and a parent is severed the child will tend to maintain an internal relationship and, in that context, may idealise or demonise the absent parent.  Both of those scenarios have potentially negative implications for future relationships.

2. This potential risk must be balanced against the risk to the child of a continuation of spending time with the father as Mr D says:

   100.However, the existing arrangements provide for the child to live with the mother but to spend substantial time with the father and, in my view, this regime has been destabilising for the child.  Unfortunately, I also consider it likely that this is likely to continue.

   …

   102.On balance, I generally concur with the reported Departmental view that the father’s behaviour has been gratuitous and emotionally harmful to [B].  Consequently it is also my view that something needs to change.

   103.In my view, the question of whether to decline to make provisions for [B] to spend time with his father, or to significantly reduce that time, is finely balanced.

3. In his oral evidence Mr D appeared to come to the reluctant conclusion that the risk to the child, given the “unique features of this family” was greater if time with the father continued. I agree.

4. It is with a heavy heart that I conclude that the child cannot safely have a relationship with the father. The father has no capacity to see that he has in any way contributed to this result. The father has demonstrated with breathtaking persistence, his incapacity to protect the child from his views about the mother.

5. While the time the child currently spends with the father seems to be a generally positive experience, this is not a case where I can envisage that a move to unsupervised time is likely. The child is already demonstrating boredom and frustration during supervised time and that is only likely to get worse as he gets older. I can see no ‘cogent reason’[19] for making a long term supervision order.

   [19] See Moose & Moose (2008) FLC 93-975.

6. Although the 2016 Order provided for the mother to have sole parental responsibility there have been disputes about whether or not the mother informed the father of proposed decisions as required by the Order. The mother contends she has and the father denies that. The Order as it stands has provided a means by which the parents’ conflict continues. Accordingly, there will be no requirement imposed on the mother to inform the father about any parenting decision she makes for the child.

I certify that the preceding one-hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 21 March 2019.

Associate: 

Date: