TIJANI & JORDAN

FAMILY COURT OF AUSTRALIA

TIJANI & JORDAN

[2017] FamCA 30

FAMILY LAW – CHILDREN – Where the father seeks that the child live with him and spend no time with the mother – Where the child currently lives with the mother and the maternal grandparents and has not seen the father for over two years – Where there have been extensive allegations of sexual abuse of the child made against the father – Where the father argues that the mother has coached the child into making the allegations – Where, whether or not the abuse occurred, the child believes that she was sexually abused – Where it is not in the best interests of the child to be removed from the care of the mother or the maternal family – Orders made for the child to live with the mother and spend time with the father if she expresses a wish to do so.

FAMILY LAW – COSTS – Application for parties to each pay half the costs of the Independent Children's Lawyer – Where the application is opposed by the father – Where the father is ordered to pay half the costs of the Independent Children's Lawyer.

Family Law Act 1975 (Cth) ss 60CC(2), 117(2A)

APPLICANT:

Mr Tijana

RESPONDENT:

Ms Jordan

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

SYC

442

2007

DATE DELIVERED:

25 January 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

16, 17 and 18 January 2017

REPRESENTATION

THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Ms Mahony

SOLICITOR FOR THE RESPONDENT:

Andrew Harris and Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

Orders

IT IS ORDERED

That the mother have sole parental responsibility for the child Y (“the child”) born … 2005.
That the child live with the mother.
That the child shall spend no time with the father unless she expresses a wish to do so.
That the mother ensure that the child attends all appointments with her current counsellor, Ms P, or any other counsellor recommended by Ms P with such frequency and for so long as Ms P recommends.
That within 28 days the father pay to the Legal Aid Commission of NSW the sum of $4,605.40 being one half of the costs of the ICL.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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 Tijani & Jordan 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 SYDNEY

FILE NUMBER: SYC 442 of 2007

Mr Tijani

Applicant

And

Ms Jordan

Respondent

REASONS FOR JUDGMENT

The child Y (“the child”) was born in 2005 and is nearly 12 years old. She has lived in the shadow of litigation, suspicion and allegations since shortly after she was born.
Mr Tijani (“the father”) is the applicant in the proceedings. He seeks an order that the child live with him, that he have sole parental responsibility for her, and that she spend no time with her mother.
Ms Jordan (“the mother”) seeks orders that the child live with her, that she have sole parental responsibility for the child, and that the child spend no time with the father.

BACKGROUND

On 8 July 2005, the Local Court heard an application by the mother for an Apprehended Domestic Violence Order (“ADVO”) against the father. That application was dismissed.
On 7 September 2005, the father filed an application for final orders seeking to spend time with the child. The child was five months old. That application was finalised by Consent Orders on 4 October 2006.
On 24 January 2007, the father filed a further application for final orders in relation to parenting matters, and in the course of those proceedings Dr B, a child and family psychiatrist, was engaged as a single expert.
From 24 March 2007 until 12 July 2008, pursuant to interim orders, the child spent time with the father supervised by Interrelate.
In 2007 the mother told the police that she suspected that the father had planted drugs at her home. She made a report in July 2007 that the father had broken into her home and stolen her television set.
Dr B prepared two reports, one dated 24 December 2007 and the second report dated 9 December 2009.
In the report dated 24 December 2007, Dr B records the extremely negative views of the father which were expressed by the maternal grandparents, including a statement by the maternal grandfather that the best thing for the child would be if the father were sent back to New Zealand and had no contact with her. At the time of the report the child was two years old and was living with her mother and maternal grandparents. Dr B commented that she appeared to have a strong attachment to both her mother and her father and also to her maternal grandparents.
Dr B recommended that the child continue to reside with the mother and that she have regular contact with her father. Dr B’s final recommendation was:
Should the child be exposed to a parent using illicit or excessive drugs then the contact should be reduced accordingly. Should [the mother] attempt to reside separately with the child away from her parents I believe that there may be a risk that she might not be able to cope with the care of the child and that a review of the residential arrangements should be conducted.
On 24 April 2008, there was an alleged disclosure by the child, which may have been interpreted as a disclosure of sexual abuse.
On 26 April 2008, the mother reported to Interrelate that the child had been talking about “willies” and putting objects near her genitals.
On 17 June 2008, the Family Court of Australia heard an application for the mother to be dealt with for contravention of orders. That application was dismissed on the basis that the mother had a reasonable excuse for non-compliance.
In July 2008, the mother alleged that the child said to her “Daddy kisses my bum off with his willy”.
The mother alleged that, in the course of contact supervised by Interrelate, the father sexually abused the child. The Interrelate supervisor gave evidence in the local court proceedings that the father and the child had never been left without supervision. In cross-examination before me, the mother said that she did not accept that Interrelate had properly supervised and said that she had been told that the father had been allowed to take the child away from the Interrelate premises, allowing the opportunity for sexual abuse to occur. It is inherently unlikely that the father sexually abused the child in the course of contact supervised by Interrelate.
On 20 August 2008, a hearing proceeded in relation to parenting before Justice Fowler in the Family Court of Australia. That hearing concluded on 22 August 2008 and judgment was delivered and final orders made. Justice Fowler ordered that the parents have equal shared parental responsibility for the child and the child spend time with her father, initially limited but increasing to alternate weekends, Wednesday overnight in the off-week, and four block periods in school holidays. At the time of Justice Fowler’s orders, the child was three years old.
On 7 October 2008, the father made a Risk of Harm report to the Department of Community Services (“DOCS”), as it was then known, alleging that the mother was bringing the child into contact with Mr H, a person who, the father alleged, used drugs and had a criminal history.
The father gave evidence that on 2 January 2009, the child said to him that her cousin L had punched her “pee pee and sucked it”. The father said that the child appeared to find the statement amusing. L was at that time three and a half years old and the father told the child that her statement was nonsense and she shouldn’t say such things.
On 14 January 2009, the father sent a facsimile transmission to the mother threatening that if the mother continued to bring the child into contact with Mr H, he would file an application, presumably for parenting orders.
On 20 January 2009, the mother took the child for a medical examination to her general practitioner, Dr M. Dr M’s records note that the child told him “daddy doesn’t hurt me”, and Dr M was unable, on examination, to see any sign of trauma.
On 13 February 2009, the child was interviewed by the Joint Investigation Response Team (“JIRT”). The transcript of the JIRT interview was in evidence before me but not the video recording. As a result of that interview and the alleged disclosures of sexual abuse made by the child, JIRT applied for a provisional ADVO and the provisional interim order was made.
On 13 February 2009, the child was examined at the Children’s Hospital, but there were no physical findings consistent with abuse.
On 23 February 2009, JIRT was contacted by NSW Crimestoppers with police intelligence relating to the criminal activities of Mr H and concerns for the welfare of the child in his presence. A DOCS officer contacted the mother and warned her that she should not take the child to Mr H’s residence.
On 26 February 2009 the father filed a further application for final parenting orders.
On 7 March 2009, the mother had a motor vehicle accident in Suburb X and told police that she believed the father had tampered with the braking system on her car.
On 8 March 2009, the father’s flatmate, Mr R, filed an affidavit in support of the father’s parenting application. On 26 March 2009, there was a further JIRT interview with the mother and, on that occasion, for the first time, the mother alleged that the child had made disclosures that Mr R had abused her.
A Magellan Report was commissioned by the Family Court of Australia and DOCS provided the report but declined to intervene in the proceedings.
On 9 April 2009, the child was interviewed again by JIRT and allegedly made disclosures against both Mr R and the father. The transcript of the interview was in evidence.
On 26 October 2009, the Local Court at Suburb X commenced to hear the application by NSW Police for an ADVO for the protection of the child. In the course of that proceeding, the videos of the JIRT interviews with the child on 13 February 2009 and 9 April 2009 were viewed by the Court. The proceedings concluded on 1 December 2009 when the presiding Magistrate delivered judgment dismissing the application and concluding that the mother had fabricated false allegations of sexual abuse against the father.
I am conscious that, although the mother was a witness in those proceedings, she was not a party. There was no cross-examination of witnesses on behalf of the mother and no submissions made on her behalf.
In his report dated 9 December 2009, Dr B observed the child with her father. He observed a comfortable interaction. When the father asked the child if she wanted to come to his home, the child said yes, but commented that she would have to ask permission. The child then asked her father if he would like to come and visit her home. When the father asked the child “Do I get a hug?” the child said “What if I ask mum?” and the father said “What do you think she might say?” the child replied “Maybe yes, she might say yes”. Dr B commented that the child did want to give her father a hug, but she was cautious and concerned about her mother’s reaction.
Dr B reviewed the JIRT interviews dated 13 February 2009 and 9 April 2009. He was given the opportunity to play the recording of the interviews. In his report, Dr B commented on the leading nature of significant questions put to the child and, in particular, the propositions that were put to the child which had not come from her. Dr B expressed the view that the interviewers had ignored the child’s numerous statements to the effect that her father had not done anything to her and that the child did not disclose that anything had occurred until she was asked leading questions.
In conclusion, Dr B said of the interviews:
In all, I believe for a child of three/four years of age that these interviews don’t reveal anything of substance that can be helpful either in a positively or negatively (sic) with regard to whether anything adverse had happened to this child sexually. In essence, I don’t believe the interviews should be held with any value.
Dr B expressed the view that the mother and her parents have formed a distorted view about the potential sexual abuse by the father of the child, and that this view has now become self-reinforcing. Dr B expressed serious concerns about the mother’s parenting capacity, he did not believe that she would be capable of caring for the child without the assistance of her parents.
In relation to the maternal grandparents, Dr B expressed the view that they had formed a collusive relationship with the mother in regard to the father and the allegations, and that this was a very destructive dynamic. Overall, Dr B expressed the view that he did not believe that the father posed an unacceptable risk to the child.
In relation to the allegations of sexual abuse, Dr B stated:
The allegations and the intensity of animosity between the parties has created a situation where there appears to be enormous contamination of the child. The allegations arose under the circumstances when the mother was under a great deal of pressure from the father who had been making repeated reports to DOCS about her potential drug use and her possible contact with [Mr H]. Under these circumstances and with contact increasing the sexual abuse allegations arose. I believe that the mother has been increasingly anxious and as a result the grandparents have also had a great deal of anxiety. The allegations arose when the child complained of a sore bottom and the mother questioned the child. I don’t believe the mother is a good judge of how to question the child and how to manage a situation like this. I believe it’s most likely that the repeated questioning by the mother and the maternal grandparents has resulted in the child developing a story. The story appears to equate to and lead to allegations of sexual abuse. It would appear that the grandmother and the grandfather have also been questioning the child. From the grandfather’s statement for example they now believe that both [the father] and [Mr R] are in the shower together sexually abusing the child.
In relation to the JIRT interviews, Dr B stated:
To complicate the situation further I believe that the JIRT interviews appear to be heavily influenced by the belief of the interviewing JIRT interviewers. From those interviews it appeared that, as I’ve outlined earlier in the report, that the JIRT interviewers had preconceived ideas and that they actually put words into the child’s mouth that the child hadn’t stated.
In his conclusion in relation to the allegations, Dr B stated:
In essence, I believe that the constant questioning of the child and the spurious interview by JIRT have created such contamination that I don’t believe that interviewing the child was able to provide a satisfactory assessment.
Dr B expressed the view that if the child remained living with her mother and maternal grandparents she would not be able to continue to have a relationship with her father. It was his recommendation that there be a change of residence and that the child should live with her father, provided that the father and the child lived alone together. Dr B believed that the child was sufficiently robust that there did not need to be a period of transition.
The transcripts of the two JIRT interviews were tendered in the father’s case. My reading of the transcripts confirms Dr B’s observations of leading questions and matters being put to the child which did not originate with her.
On 6 April 2010 the second defended hearing of parenting proceedings commenced in the Family Court of Australia. Those proceedings concluded on 9 April 2010 when Orders were made by consent providing for the mother and father to have equal shared parental responsibility for the child and for the child to spend time with her father for a period of six months from the date of the Orders from 10 am Saturday until 6 pm Sunday each alternate weekend, and after school until Thursday morning on the alternate Wednesdays. After six months, the time was to be extended so that the child spent time with the father after school on Friday until 6 pm on Sunday in addition to the alternate Wednesdays. That time was ultimately to be extended from Friday after school until before school Monday. The child was also to spend time with the father for half of all school holiday periods. The Orders contained provisions restraining both of the parties from consuming illicit substances, and, particularly, restraining both of the parties from questioning the child about past sexual abuse allegations or allowing other people to do so.
It would seem that the mother consented to the order, notwithstanding her belief that the father had sexually abused the child, and the father consented to the order notwithstanding his belief that the child should live with him and that the mother had made false allegations of sexual abuse against him. Neither position can be logically explained within the context of the child’s best interests.
On 10 July 2010, the police executed a search warrant at the home of Mr H. the mother was present in the home at the time. The child was not present. The police found plastic resealable bags containing a substance believed to be cannabis, ice pipes and other drug paraphernalia, and replica pistols.
The Orders which were made on 9 April 2010 appear to have proceeded without incident until about October 2012, when the parents had a dispute about the arrangements for the upcoming Christmas holiday period.
On 24 October 2012 a Risk of Harm report was received by the Department of Family and Community Services (“FACS”), previously known as DOCS. The caller reported that the child was sleeping in her father’s bed and alleged that the father had slapped the child’s face. It was further alleged that the child did not want to have contact with her father.
In December 2012, the child travelled with her father to New Zealand to spend time over Christmas with the paternal family.
On 15 January 2013, the child was again interviewed by JIRT.
In April 2013, the Suburb X Child Protection Office conducted interviews with the father and did a home visit at a time when the child was present to observe the child in the father’s care.
The mother deposed that around Christmas 2013, the child complained of sore genitalia, that she was changing her underpants approximately three times a day, and frequently bathing. The mother said she noticed an unpleasant discharge in the child’s underpants.
The mother made an appointment with Dr T at the D Medical Practice. Dr T referred the child to a paediatrician who conducted a pelvic ultrasound. The results were normal.
On 3 March 2014, a Risk of Harm report was received by FACS to the effect that the child had an “abnormal vaginal discharge”.
Records produced by the child’s school counsellor note that on 31 March 2014, the hild told the counsellor that the hardest thing about going to her father’s home was that her father yells at her and she couldn’t tell him how she feels. The counsellor and the child discussed letting the father know that she doesn’t like it when he yells and would rather that he talk to her.

On 8 April 2014, the child was interviewed by Child Protection caseworkers. There were further Child Protection home visits on 16 May 2014 and 11 June 2014.
Notes produced by FACS state that on 16 May 2014, a home visit was conducted at the father’s house. The child greeted the case workers happily and asked them if they would like to see her room. She showed them around. The case workers noted that the child held on to her father while she was skateboarding and asked the father for help. She chatted comfortably with the father.
On 7 June 2014, the mother told the school counsellor that the child was having flashbacks of sexual abuse.
In the school holidays in June 2014, the child spent the first half of the holidays with her father.
The mother deposed that in the school holidays in 2014 when the child lived with her father for seven days, she was bathed only once, and upon return to the mother’s care, the child’s hair was so matted it had to be cut. The mother deposed that the child’s genitalia were “red raw”.
On 2 July 2014, the father deposed that the mother sent a text message to him which read:
If u want to be smart [father’s first name] you can take me for contravention of the current court orders but just a word of advice these current court orders are null on void as justice Fowler was not a qualified Magellan judge at the time of the hearing therefore was not qualified to make such judgments ask ICAC they deal with this type of corruption everyday!
The text continued:
Justice Fowler made a judgment and should not have even heard the matter whereby I was forced into consenting to the current court orders otherwise I would have lost [the child], it’s called CORRUPTION [father’s first name] does [Ms E] and Facebook ring a bell? That’s what a royal commission is for to protect the innocent children that are victims to corruption and pay the price for malice and manipulative individuals.
The father deposed that the mother sent a further text stating:
… it’s the cruelling truth that your lies and manipulation along with others that constituted CORRUPTION and has ruined a little girls life but now a royal commission is what will bring JUSTICE and the truth with all unfold right under your nose!
The mother deposed that on 6 July 2014, she went to collect the child from the father’s residence at the end of his school holiday period with her. She observed that the child and the father were in the lounge room reading and the father was shouting at the child. The mother and father had an argument about the child’s reading, which culminated, according to the mother, in the father ordering her out of the house. The mother deposed that the father had shouted at the child and said to the mother, in the child’s presence, “You’re fucking mental and delusional. You need to see a psychiatrist; you say that ICAC or a royal commission is being sought in this matter”.
The mother deposed that the child was present when the father said to her “You and your father coached [the child] into making out false sexual abuse allegations, you’re fucking mental and a fucking idiot”.
The mother deposed that when she left the house and put the child in the car, the child said “Quick mummy, lock the doors in case he comes after us”. The mother deposed that on the way home the child said to her “I really thought he was going to hit you… I thought he was going to hit me too, I was really scared.”
On the following day, the mother sent an email to the child’s case worker detailing what had happened. There was a Case Assessment Conference on 8 July 2014.
On Friday 25 July 2014, the child was due to spend the weekend with her father. She had been ill and at home during the day. The mother deposed that sometime during the day the child asked to use her mobile so that she could call her case worker. In cross-examination the mother said that the case worker had given the child her phone number and suggested that the child could call her any time she liked. The child told her case worker, in the course of the telephone conversation, “I would rather kill myself than have to go”. The mother spoke to the case worker and arrangements were made with the father for changeover to take place outside the FACS Suburb X office at 6 pm. When the mother and the child arrived at the changeover point, the child refused to get out of the car.
The mother deposed that when the father arrived, he approached the child and said words to her to the effect of “Do you want to live somewhere else like foster care without your mother and I?” The father denies that he said those words. The mother deposed that the father then suggested to her that he would physically remove the child from the car and she said to him “You are not to use any form of physical discipline, and if you do I will call the Police”. A FACS case worker was observing the changeover. He spoke to the father in private. The father then leant into the car and removed the child from the car. The mother deposed that the child was kicking, screaming and crying, and that the father dragged her from the car while the child was screaming “Let me go, let me go”.
In relation to this incident, the father deposed that when he got to the mother’s car, the child was in the front passenger seat protesting and refusing to get out of the car. He observed her to be crying and protesting but did not consider her protest to be genuine. The father said “I recognised it as feigned and confected. I also perceived the mother’s attempts to encourage [the child] to get out of the car and go with me to be completely insincere.”
The father agreed that he physically removed the child from the mother’s car. The father said the child resisted him and yelled. He lifted her out of the car and stood her on the footpath. The FACS case worker spoke with the child, telling her that she needed to go with her father, but she was resistant.
The police were called.
Records produced by the NSW Police state (as per original):
About 5:50 pm on the 25^th July 2014 police received 2 messages via police radio in which [X] police have responded to in relation to [the mother] exchanging [the child] to [the father] just near the DOCS office on [S Street], [Suburb X]. Police attended a short time later and observed [the child] who was physically upset, crying and hyperventilating, saying ‘I don’t want to go’. [The mother] was trying to calm her down. [The father] was leaning up against another vehicle and DOCS worker … was present. Police spoke with the DOCS worker who stated it was a family law court issue in which orders are in place and [the child] was to go to her father’s this weekend. Police then spoke with [the child] who by this time had settled down. [The child] said ‘I don’t want to go to his place, I’m having flashbacks, every time I go I get smacked, I get flashbacks.’ Police asked what the flashbacks were of and [the child] said ‘when I’m in the shower’. Police stopped her there. Police found this odd that a 9 year old would immediately tell police she is having flashbacks of an incident and didn’t want to go to her father’s. Police then spoke with [the mother] who stated [the child] was sexually assaulted by [the father] when she was about 3 and is having flashbacks. She went onto say that when we arrived here [the child] became very upset and kept saying I don’t want to go. [The mother] said she called the DOCS office and … came down, as [the child] would not get out of the vehicle. [The father] told [the mother] to get her out. [The mother] said, ‘As per family law court order I can’t physically discipline her.’ This has caused a small argument. [The father] then made the decision to extract [the child] from the vehicle to take her as it was his weekend. [The mother] then made an allegation to police that ‘[The child] was dragged from the vehicle kicking and screaming’. She believes in him doing this [the child] was assaulted (sic). At this point police requested all parties attend [X] Police Station. Police spoke with [the father] as others were leaving. Police informed him that there is an allegation of an assault where you have dragged [the child] from the vehicle. At this stage we are looking for an AVO for [the child] and to speak with you about this allegation, would you attend the police station to which he replied, ‘yeah’. All parties left the scene and attended [the] Police Station. Police spoke with … the DOCS worker who in turn contacted … the case worker for [the child] who informed police that no new allegations of sexual assault have been made or disclosed and the apparent flashbacks would be of the incident when she was 3. DOCS went onto say that JIRT and DOCS substantiated this allegation however Family Law Court did overturn this and allowed shared custody. No further incident has occurred or been reported from that date till today. Field assessments have been made at all locations with [the father] with no apparent risks. … also stated that the alleged assault is untrue, yes [the child] would not get out of the vehicle, [the mother] would not assist so [the father] did this with no apparent force to result in an assault. Police spoke with [the mother] and [the child]. [The mother] was informed that police will not be pursuing the alleged assault and police deemed the incident of [the father] removing his not to cooperative (sic) child from a vehicle was a parenting action and not an action that would be deemed an assault. [The mother] kept referring to the family law court and the breach happening tonight where she might be acceptable (sic) to a fine and lose [the child]. Police informed her that police have made the decision to leave [the child] in her custody this weekend due to concerns of her welfare and police believe that leaving [the child] in her custody would be beneficial to her welfare on this occasion. Police informed [the father] of this decision to which he stated ‘You are just doing your job, I understand but I will file a breach application with the family law court’.
The police report concluded:
To sum up – this custody issue has been going on for some length of time now and subsequently numerous Family Law Court appearances to the point that the Magistrate has warned [the mother] that if she makes another application with the court she may loose (sic) custody of [the child] and face a fine of up to $22,000. Police have made a request to … to pass on to the DOCS case worker for [the child] that the current process of handing [the child] to father is not working and now this may not work in the future due to what’s occurred tonight and to put in place a different strategy to do this. At the time of police intervention police believed that the welfare of [the child] was paramount and if [the child] was to go with [the father] this would not be beneficial to her welfare, so the decision was to leave [the child] in the custody of [the mother] this weekend where she is happiest.
Later that evening, the father sent an email to the mother telling her that if the child was not delivered to his residence that evening, he would file a Contravention Application, and that he may also file an application seeking orders whereby the child relocate to New Zealand with him. He concluded, “I’ve had enough of this shit”.
On 25 July 2014, the father sent a further email to the mother at 8.42 pm which stated:
8PM has passed. Contravention Application will be filed. Expect to be served mid-week. I am considering options to have [the child] removed from your care permanently. You’re obviously under the impression that people that are now involved are as stupid has (sic) the doctors that were involved in your … insurance scam.
Cheers.
At about 6.30 pm on 27 July 2014, the mother sent an email to the father stating, inter alia:
It seems unlikely that [the child] will suddenly want to be alone with you after last Friday’s incidents. I would ask you to give her a bit more time and not to insist on next Wednesday’s contact.
I’m not refusing your request – simply pointing out that such request may not be in the best interests of your ongoing relationship with [the child].
At about 9 pm on 27 July 2014, the father sent an email to the mother which read:
It’s probably in [the child] (sic) best interests that she is remove (sic) from your care.
You were given a second chance in April 2010. If you continue to play games [the child] will be removed form (sic) your care. In fact, you’ve probably passed the point of no return already.
Should you go willingly into treatment for your personality disorder things may work out. If not [the child’s] gone from your care permanently.
That’s the choice you have.
On 27 July 2014 at about 9.21 pm, the father sent an email to the mother which read:
Let me show you exactly how this is going to go down should matters escalate in the Family Court litigation.
[The father then attached a copy of a judgment in another matter.]
I helped the mother in this case … She came to me and others for assistance. We spent hours counselling her in an attempt to talk her out of what she was doing. I sat in the court and watched the entire proceedings. She was exactly like you are now.
This is the end game for you unless you go willingly into psychiatric treatment are are (sic) fully prepared to be honest.
[The child] needs a healthy mum. Time for you to step up, do what you must do and change the course of your life for the better.
Everyone wants you to live a happy and fulfilling life form (sic) this point forward.
On 29 July 2014, the mother sent an email to the father which stated “I will be making [the child] available for contact in accordance with the Court Orders”.
On the next contact occasion, Wednesday 30 July 2014, the father collected the child from school and she went with him without objection.
On 1 August 2014, notes produced by the child’s school counsellor read “Received message from front office. While I was in a meeting [the child] asked to see me 3 times and [mother] rang and described [the child’s] flashbacks and [the child] not wanting to go to [father’s] to office staff.” The counsellor arranged to speak to [the child]. She noted:
[The child] reported on Wednesday she went to [father’s]. She said she told DOCS she is having flashbacks of ‘[The father] and [Mr R] in the shower putting their willies in my mouth’. She reported on Wednesday [the father] said ‘You’re not hurting me or [Mr R] by telling about flashbacks, you’re hurting your mum’ and that she might never see [her mother] again. When questioned she said ‘I might have to live with him fulltime because I’m telling mum about flashbacks and don’t want to go’. She described last handover where police were called.
The school counsellor made a report to DOCS.
On 8 August 2014, the father arrived at the school to collect the child from the after school care centre. It was reported to the father that the child was hiding in the toilets saying she did not want to go with him.
Records produced by the NSW Police state:
About 7pm on the 8^th August 2014 police received a job to attend the [D] Public School after school care. The centre stated that a 9 year old student has locked herself in the toilet as she didn’t want to go with her father. Police arrived shortly after with [the child] opening the door and in good health. Police spoke with [the child] whom stated she was having flashbacks of a sexual incident with happened years prior between herself and her father … [The child] also said to police that her father … had slapped her on the face weeks ago and police did nothing about it. [The child] continued saying that a case worker from DOCS was present and they did nothing about it either. Police checked the police system and confirmed the incident that [the child] was speaking about. [The father] was present and discussed his daughter’s behaviour being somewhat coached into saying certain things against him made up by his ex partner… Police spoke with [the child] who didn’t seem upset or look fearful and asked if she wanted to spend time with her father which she declined, stating she wanted to have her mother collect her. [The mother] arrived and collected [the child] from the centre.
On 9 August 2014, the father sent an email to the mother stating:
Actually I believe you’ll find that me, NSW Police, [the child’s] School, Care Centre staff and probably Child Protection are all on the same page.
You think you’re creating evidence to advance a ‘views of the child’ type of argument in the Family Court.
What you’re actually doing is creating evidence that [the child] should be removed from your care.
No one believes your shit …
Everybody can see through you and can read what game you’re trying to run.
Do you not know that everybody can see through what you’re trying to do?
DELUSIONS OF GRANDEUR is how I’d describe your current state … Also linked to Narcissistic Personality Disorder.
Aside from emotionally harming by involving [the child] in your various plots to change parenting arrangements in your favour, you’re creating a situation whereby all parties concerned about [the child’s] welfare will seek and support her being permanently removed from your care.
The mother responded, also on 9 August 2014, referring to an email sent by her on 23 April 2014, which stated:
I have requested that we attend mediation and have a parenting plan implemented to which u declined, I have tried to organise for myself, you and [the child] to sit down and work the the (sic) problems to which u flatly refused and said we would work through [the child’s] problems with a professional physiologist (sic) in which [the child’s] GP referred her to [Ms K] to help [the child] work through her problems only for you to withhold your consent and turn it into a toxic and conflicting situation denying [the child] the right to get help in which you have interfered and prevented this from happening since the current orders were implemented and you also failed to attend parental counselling as strongly recommended by DOCS.
On 13 August 2014, the father collected the child from after school care for Wednesday evening contact and returned her to school on Thursday morning.
On 11 August 2014, the father received a telephone call from the child’s case worker indicating that a decision had been made for proceedings to be initiated by FACS in the Family Court of Australia.
On 22 August 2014, the child was examined by her general practitioner Dr M. He noted that she was suffering from an upper respiratory tract infection. Dr M stated:
While I was examining her chest, ear, nose and throat, I asked her how bad her cough was. She said it was waking her at night. I then asked her what happens then and she said in a matter of fact voice that she get (sic) flashbacks of ‘[Mr R] and [the father] putting their willies in my mouth’. This was extremely odd as we were not talking about any family issues at the time.
Dr M stated:
[The child] also stated that she had told the ‘DOCS lady’ about the flashbacks and she (the DOCS lady), told her father what [the child] had said. [The child] then got into trouble from her father for making up stories. I re-enforced (sic) with her that it is important to always tell the truth and that if she believes something happened she should stick to this.
At about 1.40 pm the mother sent an email to the father advising that she had taken the child to see her GP because she had an upper respiratory tract infection and asking whether she could drop the child to his place for the weekend.
On 22 August 2014, the father received notification from the child’s case worker that the child was not at school and alternative changeover arrangements had been made whereby the mother would drop the child at the father’s home. The mother sent an email to the father confirming that she would deliver the child to his residence at about 6 pm. The mother deposed that when she arrived at the father’s home, she was unable to persuade the child to get out of the car. The mother said that she telephoned the father two or three times asking for his help and continued to try and persuade the child to get out of the car. The father refused to respond to the mother’s calls for assistance, saying that on the last occasion where he had attempted to remove the child from the car, she called the police and he had been accused of assault. Ultimately the mother left the father’s home and the child did not spend time with the father that weekend.

On 22 August 2014, the after school care coordinator at the child’s school made a report to FACS. She informed FACS that there was an incident where the police had to be called to the school because the child was refusing to go with her father. The coordinator said that the child had told four workers at the centre that she did not want to go to her father’s place and that she had been having recurring flashbacks of being abused.
The coordinator said that when the father arrived at the centre, the child ran to the toilets and locked herself in saying she didn’t want to go with him. The coordinator told FACS that the centre was prepared for there to be difficulties as the mother had called on the preceding Wednesday to say that there may be an incident because the child did not want to go with her father. The coordinator expressed her concern that the mother had ‘set up’ the incident because the mother telephoned at 7.20 pm (over an hour after the centre had shut) to see how the changeover had occurred. The coordinator also noted that the mother had used the word “flashbacks”, commenting that this would not be a word that she would have expected the child would normally use.
The child has not spent any time with her father since that date.
The school counsellor recorded that on 9 October 2014, the child told her that she was afraid that her father was going to pick her up from school and she stayed at home. The counsellor records the child as saying “sometimes I say I want to hurt myself” and “sometimes I bang my head on the cupboard door”. The child said to the school counsellor “If I had to go to [the father], I’d probably kill myself” and “I would jump off a cliff”. The school counsellor had a discussion with the child about the finality of death and asked the child if she would promise not to kill herself. The child said she could not make that promise.
On 14 October 2014, the school counsellor recorded that the child presented as more calm and settled. The child said that she still worries about her father and reported that she still sometimes thinks of suicide, but she could not recall when, in the last week or so, she thought about it exactly.
On 24 October 2014 the father filed an application seeking that the mother be dealt with for contravening orders on 25 July 2014, 8 August 2014, 22 August 2014, and thereafter on each occasion when contact was to occur pursuant to the current orders.
On 12 December 2014, FACS filed an Application for final orders which initiated the current proceedings. FACS sought an order that the child attend for counselling on a named psychologist. The father opposed that application.
On 23 March 2015, the child told the school counsellor that she had no concerns and no worries.
On 11 May 2015, Orders were made suspending the time the child was to spend with the father and permitting the child to attend counselling with a named psychologist nominated by FACS. The counselling was to be non-reportable. That psychologist was not available and FACS attempted, unsuccessfully, to substitute another psychologist. The father would not agree. The matter was relisted.
On 21 May 2015, the child told the school counsellor that she is “good” due to not having to go to her father’s house and getting two bearded dragons. She reported that she had spoken to somebody about her father but couldn’t remember what had been said. She reported that she had no sad, worried, angry, or confused feelings.
On 12 August 2015, orders were made, over the father’s objection, for another psychologist to be substituted. On that day, the court was told that the mother had doubts about the child’s paternity. The parties agreed to have DNA testing and the orders restrained the parents from discussing the results of the testing with the child.
Records produced by FACS indicate that on 11 October 2014 a report was made to FACS, I assume by the school counsellor. The reporter said that the mother had contacted them to say that the child had been writing in her diary (undated):
I feel as though I feel I go to school, tomorrow (sic) then [the father] is going to pick me up and if I have to see him again I will kill myself and I keep talking to mum and that makes me want to hurt myself.
I feel like just jumping off a cliff. I feel really really sad. Maybe it would be better if I was not alive.
I just want to fall.
The reporter also said that the child had not disclosed thoughts of self-harm to anyone at school to her knowledge. The reporter felt that she was also being used as a pawn in the custody matter. The reporter stated that the mother had telephoned saying the child was too frightened to come to school as she thought her father might be picking her up in the afternoon.
On 22 October 2015 the results of the paternity testing were available. The applicant is the child’s father.
On 5 November 2015, the father’s Contravention Application was dismissed.
On 8 December 2015, the school counsellor noted that the child presented as happy and relaxed.
On 1 February 2016, the school counsellor reported the child as being resistant to going to her counsellor at the W Clinic. By 7 March 2016, the child’s resistance seemed to have waned.
On 28 July 2016, FACS, having filed a Notice of Discontinuance, sought leave to withdraw from the proceedings. The father became the applicant. Directions were made for the filing of affidavits so as to ready the proceedings between the father and the mother for hearing.

THE HEARING

The father relied on affidavits by himself and on two affidavits sworn in 2009, one by his sister and one by his flatmate, Mr R, to which reference has been made earlier in these reasons. Neither the father’s sister nor Mr R was required for cross-examination.
The mother relied on an affidavit by herself.
An Independent Children’s Lawyer (“ICL”) was appointed for the child.
The Court was assisted by a Family Report from a Family Consultant dated 7 July 2016. The Family Consultant was cross-examined.

THE EVIDENCE OF THE FAMILY CONSULTANT

The Family Consultant, Ms F, prepared a report dated 7 July 2016.
In relation to the father, the Family Consultant reported:
[The father] presented as being quite disparaging about [the mother] throughout his interview. During the interview, his comments included: that [the mother] is manipulative; that she is narcissistic; that, in 2001, as part of her accident claim assessment, she was diagnosed with a histrionic personality disorder; that she makes untrue statements; that she constantly makes spurious allegations against him; that she uses [the child] to manufacture evidence against him and that she is inculcating [the child] against him and has coached her regarding the sexual assault allegations to avoid her spending time with him. He alleged that [the mother] had prevented his spending time with [the child] well prior to any sexual abuse allegations being made. [The father] added that he was aware that he was making negative statements about [the mother] but said that he is very concerned for [the child].
The father told the Family Consultant that he believed that the child would be at risk if her mother were the only parent in her life. He said that he believed that the mother’s situation of living with her elderly parents was unsustainable (a comment he repeated in his oral evidence). The father told the Family Consultant that the mother has not worked for many years and was likely to be unemployable and therefore he believed that the child would be at high risk if he were not involved in her life.
In relation to the sexual assault allegations, the Family Consultant recorded:
[The father] said that he had been concerned about his daughter making such alarming statements about him. He insisted that ‘the reality is not what it appears to be’ [with regard to the sexual assault allegations] and emphatically denies that there is any basis for them. He also stated that the allegations made about [Mr R] were untrue and added that [the mother] had made allegations about [the child] being sexually abused by him during the period when [the child] spent supervised time with him at a contact centre for 18 months. [The father] believes that his daughter has had to ‘pretend’ (about the sexual allegations), that [the mother] uses [the child] to find evidence against him and that [the child] is ‘now practiced at it’. He expressed the view that, due to [the mother’s] alleged personality disorder, stopping his time with [the child] would only minimise the problem (of the allegations) but would not stop the problem. [The father] added that, regardless of the outcome about his time with her, things look negative for [the child]. He expressed concern that, if [the child] continues saying things about him that are not true, she might also begin saying untrue things about other people and this will impact on her relationships and development.
The Family Consultant recorded:
[The father] believes that the maternal grandparents hold the view that, if one is not for them, then one is against them and is, therefore, believed to be a ‘public enemy’. He believes that, as a result of this dynamic, [the child] has to pretend that she hates him in order to fit in to [the mother’s] home and family. [The father] believes that [the child] feels loved by her grandparents but he questioned the impact of their views on [the child] about what they believe to be love.
The father gave the Family Consultant a history of using drugs on a recreational basis, including ice and ecstasy. He said that both he and the mother used drugs when they met in 2004 and continued to use drugs together on a recreational basis. The Family Consultant commented that it was difficult to get a clear picture of when the father stopped using drugs and he was somewhat defensive about questions concerning his drug use, although he stated that he does not now use drugs.
The mother told the Family Consultant that:
[The father] would threaten her if she could not change the time he spent with [the child] as he wished; that his threats included that she would lose [the child] if she did not cooperate with him; that he would make [the child] distressed when he was helping her with her reading; that he took photos of [the child] when she was on the toilet; and that, when in New Zealand with the paternal family, he filmed [the child] from behind bushes when she was swimming without her swimming top and had refused to give her the swimming top.
The Family Consultant noted that the version of events which the child gave when she was interviewed by police in relation to these allegations presented an “opposing narrative”.
Records produced by the NSW Police state:
[The child] expressed to detectives that she didn’t like that her father had videoed her without her top on and without her knowledge. [The child] was asked if she wanted to swim with both her swimming bottom and top on, and she explained that [the father] had asked her if she wanted to put her swimming top on and she said no because it was night time. [The child] did not appear concerned about swimming without a top on in front of her father.
The Family Consultant records:
[The mother] said that [the child] has experienced phases of being very angry with her for sending her to spend time with her father. She said that, when [the child] was refusing to see her father, [the mother] used to ‘force’ her to go. [The mother] believes that [the child] does not miss her father and would benefit from spending no time with him. She said that, if it is ordered that [the child] should spend time with [the father], she would abide by the Court decision, but she expressed concern that [the child] had threatened self harm in 2014 (and allegedly still does currently), when she was made to spend time with [the father]. [The mother] believes that [the child] is at risk of sexual harm from [the father] and also at risk of self harm if she is in a position of having to spend time with him. She said that [the child] was scared of attending Court for the interviews and had repeated to her mother that, if she had to see [the father] ever again, she would kill herself.
The Family Consultant recorded:
[The mother] said that, from Christmas 2013, when [the child] was spending time with her father, she had a vaginal discharge which [the mother] said she initially thought to be due to [the child] not having bathed, but now believes to have been due to sexual abuse. She said that, due to [the child’s] vaginal discharge, and her previous constant Urinary Tract Infections (UTI’s) (reportedly still occurring but now not as frequent), [the child] takes a spare pair of underpants to school. [The mother] asserted that, in 2013 and 2014, [the child] had a red and inflamed vagina but said that the GP observed no redness during examination and that nothing untoward was identified, as was also noted in the subpoenaed material. She said that, at the time, she did not agree to the GP doing a deeper cervical swab. [The mother] said that, although [the child] will have a bath, she does not have a shower due to the ‘memories’ she has of having been sexually assaulted when she was a young child by her father in the shower.
The Family Consultant noted:
[The mother] believes that there have been times, for example when they have been shopping, that [the child] has thought that she has seen her father and become (sic) very anxious and worried. She said that [the child]’s previous response to the possibility of seeing her father was to have a ‘panic attack’. [The mother] said that there are fewer ‘disclosures’ by [the child] now and that the last one occurred a few months prior to these family report interviews. She said that, in late 2015, [the child] would rock in a foetal position and that, in 2014 and early 2015, [the child] would hit her head hard but that this is no longer happening. She said that [the child] still has trouble managing her emotions and [the mother] believes that she is at fault for not stopping [the child’s] time with her father earlier. [The mother] said that, since there has been no contact with her father, [the child] has shown gradual improvement including her having increased confidence at school.
The mother told the Family Consultant that when the child initially commenced counselling in 2015 at the W Clinic she regressed, but that the position has since improved and the child has been gradually improving.
The mother told the Family Consultant that although the child has her own bedroom, she still sleeps with the mother.
The Family Consultant also interviewed the maternal grandparents.
When the child was interviewed by the Family Consultant she was aged 11 years and one month. She said she was very happy living with her mother and maternal grandparents.
In relation to her father, the Family Consultant reports:
While [the child] did not have anything positive to say about her father, she also showed little overt emotion when expressing her views about him. She referred to her father throughout this assessment as ‘[father’s first name]’ and when the writer asked her a question about her ‘father’, she corrected this each time. [The child] said that ‘[father’s first name]’ was ‘very mean’ and had hit her across the face and that she thought this had happened on two occasions but could not remember the exact details. The child] said that ‘[father’s first name]’ would yell at her when she struggled with her homework and did not understand it. She added that she, therefore, did not do homework with him. The child said she went to New Zealand with ‘[father’s first name]’ to see his family but that she does not think of them (the paternal family) as her family and that she does not think of ‘[father’s first name]’ as her father. … She said that she cannot remember any good times spent with ‘[father’s first name]’ because ‘he betrayed my trust when I was younger’. [The child] said that she has ‘flashbacks’ when she thinks of ‘[father’s first name]’. She said that she does not want to spend time with ‘[father’s first name]’ and that, if she has to, she will kill herself. [The child] made the latter statement in a very matter of fact manner with no visible emotion. [The child] said that she is scared of ‘[father’s first name]’ and thinks that he would hurt her if she were to be with him.
The child told the Family Consultant that she liked going to see her counsellor and that she sometimes speaks to the school counsellor about her worries.
The child requested more time on her own with the Family Consultant. Despite her being informed that she did not have to do so, the child indicated she wanted to try and tell the Family Consultant more.
In the second part of the assessment, the child told the Family Consultant that when she was five years of age or younger, “[The father] licked my front bottom”. She told the Family Consultant that she remembers this but cannot remember anything else about it.
The child also said that “[The father] and [Mr R] made me suck their willies”. She added that she thinks that the father might have been ‘drugging’ her when she spent time with him, because, when she returned home after spending time with him, she had a ‘sore bottom’, ‘vaginal discharge’ and was ‘tired in the mornings’. The child said that she could not remember anything about this. She said that she wanted to tell the Family Consultant about these alleged incidents to explain her feelings about why she does not want to spend time with her father.
The Family Consultant observed the child with her mother, and observed a comfortable and close relationship. She observed that the mother presented as warm and positively reinforcing of the child.
The Family Consultant also spoke to the child’s school principal. He said that the child is working to the extent of her ability, that she receives learning support in class and also in small groups to assist her with her current classwork. He believed that the child might struggle in high school and would need some assistance academically. The principal said that the child receives intermittent help from the school counsellor, but commented that the child does not seem to be a traumatised child. The school principal described the mother as caring, protective and concerned for the child, but also quite unrelenting in her views.
Similarly, the child’s year six teacher described her as a happy, friendly child who tries hard but is functioning below grade level in literacy, reading comprehension and maths. The child’s teacher said she was working to her potential but might struggle in high school. The child’s teacher said that he had not observed any signs of behaviours associated with trauma.
The Family Consultant commented that although there have been some periods of relative calm in the child’s life, the dispute between her parents overall appears to have been unrelenting and intractable. She stated:
For her part, [the child] appears to be totally immersed in the dynamics between her parents. For their parts, [the parents] appear to have prioritised their dispute over concern as to the possible impact on [the child] of her being caught up in these dynamics for so many years.
The Family Consultant commented that the child has a close relationship with her mother and maternal grandparents, who appear to have been able to provide adequate day-to-day care for the child, who attends school and seems to be physically well cared for. However, she stated that she had concerns about the relationship between the child and her mother and maternal grandparents “particularly, whether [the mother], inadvertently or not, might have influenced [the child’s] views about [the father] and/or otherwise involved her in the dispute.”
The Family Consultant further stated:
While the maternal family provides good day to day care, the family system in which [the child] lives would appear to be a fairly closed one, and it could be hard for new or contradictory information to be introduced into it.

In relation to the child, the Family Consultant concluded:
[The child] appears to have developed an absolutely negative picture of her father and, at this point in time, has completely rejected him. [The child] appears to believe strongly that [the father] sexually abused her when she was a young child and it is understandable, therefore, that she is adamant about spending no time with him. There would be considerable obstacles to overcome if the Court were to find that [the child] should spend time with her father.
[The child] has expressed emphatic and strong views. She is adamant that she does not want to spend any time with her father. [The child] was able to clearly and articulately express her views.
[The child] has reportedly stated that she would kill herself if made to spend time with [the father]. This has reportedly been the situation for the previous two years. Whether [the child’s] views regarding [the father] are based on events that really happened or on what she has come to believe happened, it would be very difficult for [the child] to change her views, given that the people closest to her, and with whom she lives, hold identical views.
In relation to the father’s proposal that the child live with him, the Family Consultant stated:
It is difficult to consider how this could work given [the child’s] strong resistance to even spending time with him, her unbending views regarding what she believes he has done to her, and her current age. [The child] has never lived with her father and has a very close relationship with her mother and maternal grandparents. Although there may be some concerns … about [the child’s] relationships with them, there is a significant probability that it would be traumatic for her to be separated from them.
The Family Consultant stated:
There is little chance of knowing what really happened in this matter due to the number of previous assessments and interventions and the history of ongoing hostility between the parents. [The child] has undergone JIRT and other assessments, including by a single expert to assess whether she is safe from sexual harm in the care of her father and there is a long history of involvement of FACS with the family, as noted in the subpoenaed documents.
Whether sexual assault has occurred as alleged or not, [the child] strongly believes that it has and the family system that she lives in strongly believes that it has. This has shaped [the child’s] attitude to her father and this does not appear to be open to change, whether or not sexual abuse actually occurred. Because of her strongly held beliefs, it would likely be traumatic to [the child] for her to spend time with her father. Even if the sexual assault allegations were found to be baseless, although this might understandably be important for [the father], it would most likely not change anything for [the child].
The Family Consultant recommended that, due to the allegations in this matter, and the history of intractable conflict, if the child lives with her mother then the mother should have sole parental responsibility for her.
The Family Consultant stressed that the impact on the child of having been involved in the court system is of serious concern. She stressed that the matter needs to be finalised for the child’s emotional wellbeing, and for the child to have the opportunity to move on and have a more peaceful life without these allegations and questions being constantly kept at the forefront of her life.
The Family Consultant stressed that it was important for the child to continue to consult with her therapist for as long as the therapist determined it appropriate.

THE ALLEGATIONS OF SEXUAL ABUSE

I accept the evidence of Dr B that that no weight could be placed on the alleged disclosures of sexual abuse made by the child in the JIRT interviews.
The child was three years old when it was alleged that she had been sexually abused. She is now almost 12 years old.
No one will ever know what happened.
There is insufficient evidence upon which the Court could find that sexual abuse occurred or did not occur.

WHAT ORDERS SHOULD BE MADE?

This decision brings into stark focus the conflict between the primary considerations set out in s 60CC(2) of the Family Law Act 1975 (Cth). On the one hand the Court is required to consider the benefit to the child of having a meaningful relationship with her father. On the other hand, the court is required to consider the need to protect the child from psychological harm.
The psychological harm to which the child is exposed is primarily the exposure to the conflict between her parents which has raged about her for many years and has resulted in her being involved in interviews with police, with welfare workers and with school counsellors, and which now sees her in need of ongoing therapeutic counselling.
Neither parent appears to appreciate the harm they have done to their child by maintaining this conflict or to have any insight into their own contributions to the child’s distress. It is abundantly clear from the narrative of the escalating conflict between the parents, particularly from the beginning of 2014, that the child was at the centre of a maelstrom of escalating antipathy between her parents.

Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

The child’s views are set out in the Family Report. She believes that she was sexually abused by her father. She does not want to spend any time with him. In cross-examination, the Family Consultant said that the child’s presentation was quite emphatic and she was reasonably articulate. The Family Consultant said that, regardless of whether the child’s belief that she has been sexually abused is based on actual fact, that is her belief and she is not open to any other version of events.
The child has said that she does not want to see her father and spend time with him since at least mid-2014.
She was adamant that she did not want to see him during the interview process for the Family Report.
I accept the evidence of the Family Consultant that, whether factually based or not, the child’s views are entrenched.
It is the child’s statements about self-harm that cause most concern.
There is no dispute that the child told both her school counsellor and the Family Consultant that she has considered self-harm and that she told the Family Consultant that, if she has to see her father, she will kill herself. Asked by the school counsellor in October 2014 to promise that she would not self-harm, the child said that she could not give that promise.
The father believes that the child’s threats are “feigned” and that she does not have any intention to harm herself. He has not seen the child since August 2014 when she was nine years old. She is not the child now that he knew then.
In cross-examination, the Family Consultant said that any threat of self-harm made by a child has mental health implications and must be taken seriously. The Family Consultant urged a cautious approach to the child’s threats. The Family Consultant said that it was most important that the child be in a supported therapeutic environment and that the child’s therapist was best placed to assist the child in relation to her threats of self-harm.
The Family Consultant was not in a position to determine whether the child was making threats of self-harm seriously and with intent, or, as the father believed, as a ruse, possibly encouraged by her mother. Neither does the evidence allow me to make such a determination.
However, I am conscious of the Family Consultant’s urging that I should take a cautious approach to those threats. It cannot be in the child’s best interests to take the chance, on no more than the father’s assessment of the child he has not seen for two and a half years, that she is not genuine in her threats. It is not the function of this Court to take risks with children’s lives that could result in incalculable harm.

The nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

The child has lived in her mother’s care since she was born. The parents did not live together immediately after her birth. In the whole of the child’s life the father, and the mother and the child have only lived together for a few months when she was very young.
The child and the mother have lived in the household of the maternal grandparents since at least 2009.
The child has not seen her father or spent any time with him since August 2014.
In those circumstances, it is to be expected that the child’s primary attachments would be to her mother and her maternal grandparents as the Family Consultant observed. She loves them and they are warmly supportive of her.
In cross-examination, the Family Consultant stressed the importance to the child, at this time, of her therapeutic relationship with her psychologist. She said that therapeutic support for the child at this time is critical.

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The father’s proposals for the child to live with him appeared to be formulated as he gave his evidence in cross-examination. He was clear that he intended to move away from Sydney and to “put some distance” between the child and the mother. Where, when and how he would move was less clear.
Ultimately, his position was that, in order to have family support, he would move with the child to a city in New Zealand where his brother lives. The father’s extended family are all in New Zealand.
He appeared to have no settled plans in relation to schooling for the child, although he was confident that he would be able to find a suitable school. How he would care for her and work full time was not explained, particularly in circumstances where she might be very distressed and angry about the change in her circumstances. Most importantly, the father appeared to have given no thought to the effect on the child of severing her therapeutic relationship with her psychologist or how a similar relationship could be established with a new therapist. The father dismissed the ICL’s concerns about how he would manage the child in New Zealand by saying that he would consult his brother and sister who are doctors.
The child has not lived with her father apart from a period of months when she was very small. She has no current relationship with him. Her attachments are to her mother and her maternal grandparents.
I accept the evidence of the Family Consultant, set out at paragraph 143 of these reasons, that separation from her mother and grandparents would be traumatic for the child. I accept her evidence that even spending time with her father would be traumatic for the child.
In cross-examination, the Family Consultant said that it is necessary to consider what is possible and what is practical. She said that it is not possible to move a child of 12 years of age against her will.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

If the child were to live with her father in New Zealand, it would be expensive and difficult for her to spend any physical time with her mother other than in school holiday periods.
The most significant difficulty, however, inherent in the child spending time with the parent who is not her primary carer, is that she will again be drawn into the dynamic of conflict and dispute to which she was subjected in 2014 and that the allegations, and the consequences of those allegations, will continue.

The capacity of :
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

The mother and the maternal grandparents have provided for the child’s physical and educational needs.
Whether they have also provided for her psychological needs is a more difficult assessment. There is little evidence that either the mother or the grandparents have tried to keep the child separated from the conflict between the parents. Indeed, the evidence of the events towards July and August 2014 is that there appears to have been deliberate involvement of the child in the conflict by the mother.
If it is the case that the maternal family has deliberately instilled in the child a false belief that she has been sexually abused by her father, then that is a form of psychological abuse. I accept the evidence of the Family Consultant that there is little chance of knowing whether that really happened.
There is no doubt that the mother now believes, even against the weight of evidence of her allegations that the child was sexually abused at Interrelate, that the father sexually abused the child. In the maternal household, that belief will be reinforced and there will be no possibility of an alternate version of past events which is less critical of the father.
There could be no possibility of the child being able to have any relationship with her father while she lives in the maternal household.
I have no doubt that, although the father has not formulated any real plans to care for the child, he would be capable of providing for her physical and educational needs.
His ability to provide for her emotional and psychological needs is also problematic.
His solution is simplistic: the child knows she has not been sexually abused by him, she has been coached to lie by the mother and the maternal grandparents, and she is feigning her threats of self-harm. Once she is in his care she will calm down and, after some initial resistance, be happy.
The Family Consultant does not share the father’s optimism.
How he would care for the child if his best predictions are not made out is completely untested and he evinces no real understanding of either what the difficulties might be or how he would ameliorate them.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

The father is of Maori heritage. His family live in New Zealand. The world of Maori culture, tradition and heritage is likely to be lost to the child if she does not spend time with her father.
Although the mother gave evidence that she would, in the future, attempt to educate the child about her Maori heritage, there is no suggestion that she has done so to date. In any event, nothing that the mother might attempt to do could replace the experience of Maori heritage at first hand from the paternal family.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

Both parents have failed to protect the child from the effects of their dispute and their toxic relationship.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

The Family Consultant stressed the importance for the child of putting an end to the conflict between her parents “and for her to have the opportunity to move on and have a more peaceful growing up without these allegations and questions being constantly kept at the forefront of her life”. I accept that evidence.
It is notable that, since the child has stopped having contact with her father, she has not been interviewed by police or welfare authorities and, from the reports of her school counsellor, she seems calmer, happier and more settled.
It is inevitable that, if the child spends time with her father whilst in the care of her mother, there will be further allegations, further interviews and further proceedings. It is likely, having regard to the child’s entrenched views, that if she lives with her father, even if she spends no time with her mother, there will be further allegations, further interviews and further litigation.
The child, not yet 12 years old, has been subjected to three fully defended parenting hearings. The litigation must stop.

CONCLUSION

An arrangement whereby the child lived with one parent and spent time with the other has been tried and has failed. The Orders which were made by consent in 2010 led, after a short period, to more allegations and more hostility. Even supervision by Interrelate did not prevent fresh allegations. There is no arrangement which could be put in place which would enable the child to have a relationship with both of her parents.
The only sustainable solution is for the child to live with one of her parents and have no relationship with the other.
If the child were to live with her father she may come to the view that she has not been sexually abused by him. That would be a positive benefit, if it is factual. She would have the experience of her paternal family and exposure to her Maori heritage. She would be appropriately physically cared for.
However, it is likely that she would be traumatised by being removed from her mother and maternal grandparents. Her relationship with her father, whom she has not seen for two and a half years, cannot be assessed to be sufficiently close that he could provide comfort to her and help her adjust to that loss. She would lose all of her familiar surroundings, her school friends, familiar places and move to a new country with which she has had very little experience. Her paternal family are relatively unknown to her and their presence would not compensate for the loss of the maternal family.
The greatest risk to the child if she lived with her father would be the risk that he is wrong about her threats of self-harm. That, coupled with the loss to the child of the current therapeutic relationship with her psychologist, is a risk which is unacceptable.
If the child lives with her mother and maternal grandparents, she will receive appropriate physical and educational care. She will be loved and supported by those people to who she has her primary attachments.
She will believe that her father has sexually abused her.
Sadly, for the child, that is the least harmful alternative.

PARENTAL RESPONSIBILITY

Each party sought an order for sole parental responsibility in the event that the child lived with him or her.
It is the father’s position that, if the child lives with the mother, the mother should be restrained from contacting him. He acknowledged that this would have the effect that she could not give him any information that would enable him to contact the child’s school from time to time and receive progress reports (as she would not be able to tell him where the child was attending). He acknowledged that the mother would not be able to inform him if there were any serious parenting matters affecting the child or if the child were injured or seriously ill. Understanding the effect of the orders he sought, he nevertheless asked the Court to make them.
In those circumstances, the mother must have sole parental responsibility for the child.

ADDITIONAL ORDERS SOUGHT BY THE FATHER

The father sought orders, in the event that the child live with the mother, that the mother be restrained from bringing the child into contact with Mr H and that she attend counselling with a drug counsellor and comply with the directions of the counsellor, including directions for urine analysis.
In relation to Mr H, the father conceded that there is no evidence that the mother has had an association with Mr H since 2010. I do not propose to make the order the father seeks.

In relation to the issue of drugs, the mother has provided results of testing in 2013 and 2014 which exclude illicit substances. She was adamant that she has not used drugs since 2006. She gave evidence that she was diagnosed in early 2016 with gastrointestinal cancer and commenced chemotherapy in March 2016. Her blood was regularly tested in the course of her treatment. She asserted that those tests reveal no use of illicit substances.
There is no evidence that the mother has used any illicit drugs for some years.
I do not propose to make the order that the father seeks.

COSTS OF THE ICL

The ICL made an application for his costs, totalling $9,213 to be paid by the parents.
Both opposed the application.
The application is to be considered having regard to the matters in s 117(2)(a).
The evidence of the financial position of the parties is scant. A decision of the Child Support Agency, in December 2016, tendered by the father, states his income to be $83,342. There is no evidence of his expenses.
The mother is in receipt of a grant of Legal Aid.
The father’s primary application and his position at trial, is that the child should live with him. He has been wholly unsuccessful.
The ICL was of great assistance to the court and it is appropriate that the father should pay half of the costs of the ICL.

I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 25 January 2017.

Associate:

Date: 25/01/2017

[2017] FamCA 30

25 January 2017

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Costs

Remedies