Tothill and Crowther
[2020] FamCA 503
•19 June 2020
FAMILY COURT OF AUSTRALIA
| TOTHILL & CROWTHER | [2020] FamCA 503 |
| FAMILY LAW – CHILDREN – Best interests – With whom a child lives – Parental responsibility – Previous final parenting orders provide that the child live with the father, spend substantial and significant time with the mother and that the father have sole parental responsibility for the child – Where the father now contends that the risk of harm arising from psychological abuse perpetrated by the mother is so high that it requires limitation and supervision of the mother’s time with the child well into the future – Where the Independent Children’s Lawyer proposes orders in similar terms to that proposed by the father – Where the mother seeks orders for an equal time arrangement and equal shared parental responsibility – Where the Court finds that there is an unacceptable risk that the child will suffer psychological harm in the mother’s care – Where all the evidence supports the making of an order that the father have sole parental responsibility for the child – Orders made largely as sought by the father. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC, 69ZX |
| Betros & Betros [2017] FamCAFC 90 G & C [2006] FamCA 994 Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Gorman & Huffman and Anor [2016] FamCAFC 174 Johnson & Page [2007] FamCA 1235 M v M [1988] HCA 68; 166 CLR 69 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 Moose & Moose [2008] FamCAFC 108 Orwell & Watson [2008] FamCAFC 62 Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 Ruth & Hutton [2011] FamCAFC 99 Seaver & Seaver [2015] FamCA 194 Tothill & Crowther [2017] FamCA 460 |
| APPLICANT: | Mr Tothill |
| RESPONDENT: | Ms Crowther |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Commission of South Australia |
| FILE NUMBER: | ADC | 4457 | of | 2013 |
| DATE DELIVERED: | 19 June 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Hannam |
| HEARING DATE: | 10, 11, 12, 13, 14 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Bartel and Hall |
| COUNSEL FOR THE RESPONDENT: | Mr Bowler |
| SOLICITOR FOR THE RESPONDENT: | Marie Stokes Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Childs |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
The orders made on 30 June 2017 are discharged.
The father has sole parental responsibility for the child, B born … 2011 (“the child”).
The child is to live with the father.
The child is to spend supervised time with the mother on one weekend day per calendar month for four hours. This supervised time is to occur in Adelaide at a location and time to be nominated by the father in consultation with a professional supervisor referred to in Order 5.
That for the purposes of the supervision of the child’s time with the mother:
5.1 The father will appoint one of the following as supervisor:
5.1.1Mr Q, provisional psychologist (or such other professional as recommended by Mr Q);
5.1.2A social worker or psychologist from the S Centre (or other professional as recommended by that service); or
5.1.3Any other professional as may be nominated by the father.
5.2 Handovers will occur at a location nominated by the father in consultation with the professional supervisor appointed by him;
5.3 The father will notify the mother of the location, date and time on which he proposes that the child spend time with her at least two weeks prior to that time occurring;
5.4 The father will pay for all expenses associated with the child’s travel to and from Adelaide; and
5.5 The mother will pay for the costs of and associated with the supervised time with the child including the professional supervisor’s costs and any costs relating to activities during the time which the child spends with the mother.
The father is to provide the professional supervisor with the following:
6.1 The Reasons for Judgment of 30 June 2017;
6.2 These Reasons for Judgment;
6.3 These Orders; and
6.4 The Family Report prepared by Dr R, Family Consultant, dated 26 July 2019.
In the event that a suitably qualified professional becomes available in a location closer to where the mother is living then the father may choose for the time between the child and her mother to occur at that location on the same terms and conditions identified at paragraphs 5.1, 5.2 and 5.5 of these Orders.
Except as set out in paragraph 4, pursuant to section 68B of the Family Law Act 1975 (Cth) the mother and anyone on her behalf is restrained and an injunction is granted restraining the mother and any such person from:
8.1 Contacting or approaching or attempting to approach the child in any way;
8.2 Attending at the child’s school in any capacity whatsoever;
8.3 Causing the child to attend upon any medical practitioner, medical specialist, psychologist, psychiatrist, social worker or any other mental health professional;
8.4 Attending the child’s sporting or extracurricular activities; and
8.5 Discussing with the child anything about the child living with the father or spending time with the mother or anyone else, whether those arrangements may change or the mother’s opinions about those arrangements.
The parties are restrained and injunctions are granted restraining each of them from denigrating any member of the child’s family to or in the presence of the child or permitting anyone else to do so.
The father is to arrange for the child to receive therapy from an experienced child and family psychologist.
The father is permitted to provide to any medical practitioner, medical specialist, psychologist, psychiatrist, social worker or any other mental professional who provides treatment or assistance to the child:
11.1These Reasons for Judgment of 30 June 2017;
11.2These Reasons Judgment;
11.3These Orders; and
11.4The Family Report prepared by Dr R, Family Consultant, dated 26 July 2019.
The father is to pay for the costs of the child’s attendance on the psychologist.
The father is permitted to:
13.1Change the child’s residence to any place in Region K;
13.2Obtain a passport for the child and is not required to obtain the consent of the mother to either obtain a passport or to enable the child to travel outside of the Commonwealth of Australia; and
13.3Do all things necessary to have the child known as and referred to as B and for this purpose, the father is permitted to provide a copy of this order to any Court or Tribunal exercising jurisdiction under the Births, Deaths and Marriages Registration Act 1996 (SA).
The father is to notify the mother as soon as practicable if the child requires hospitalisation or suffers from any serious illness, accident or emergency.
The mother is granted leave to file and serve an application to seek orders to discharge the requirement for supervision of her time with the child pursuant to these orders only at any time after 1 January 2023.
Except for Order 15, the parties are restrained and an injunction is granted restraining the parties from bringing any further application in relation to parenting matters without leave of the Court.
The appointment of the Independent Children’s Lawyer is discharged.
All applications and responses are otherwise dismissed.
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 Tothill & Crowther 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 |
FILE NUMBER: ADC 4457 of 2013
| Mr Tothill |
Applicant
And
| Ms Crowther |
Respondent
REASONS FOR JUDGMENT
Introduction
In February 2019 a father commenced proceedings for the second time in relation to the parties’ only child, a girl aged nine (‘the child”). The child’s parents (“the mother” and “the father”) who separated before she was born have been locked in a dispute concerning her parenting arrangements for most of her life.
Although it had been hoped that the orders made in June 2017 (“the June 2017 orders”) would bring an end to the dispute it appears to have continued effectively unabated in a remarkably similar vein.
It had been the father’s position in the previous proceedings that as the child had limited opportunity to develop a relationship with him in her earlier years, their relationship was in jeopardy in the future unless the child were to live with him and that he exercise sole parental responsibility for her. Orders to this effect were made at the end of the previous proceedings. He now contends that the risk of harm arising from psychological abuse perpetrated by the mother is so high that it requires limitation and supervision of her time with the child well into the future.
It had been the mother’s case in the earlier proceedings that it would be devastating for the child’s parenting arrangements to change in a way which would see the father exercise sole parental responsibility and the child to live with him. She now contends that the arrangement that would be in the child’s best interests is one of equal shared care as well as shared parental responsibility.
The Independent Children’s Lawyer (“the ICL”) agrees with the father’s contentions concerning the risks of harm to the child posed by the mother and supports orders similar to those proposed by the father (as he did on the last occasion).
I am to determine once again which party’s proposal is proper having regard to the child’s best interests being the paramount consideration.
Background
Events prior to the first proceedings
This summary of the background to the dispute is taken from my Reasons given in the previous proceedings[1] (“the previous judgment”). The previous judgment was admitted in these proceedings and findings in that judgment adopted pursuant to section 69ZX(3)(b) of the Family Law Act 1975 (“the Act”).
[1]Tothill & Crowther [2017] FamCA 460.
The mother who is 39 and the father who is 44 had a short lived relationship in which they lived together briefly and separated two months prior to the child’s birth in 2011.
For around the first three years of the child’s life the father had very limited contact with her. In November 2013 he commenced parenting proceedings in the Federal Circuit Court seeking to spend time with the child.
Although orders were made in February 2014 for the father to spend time with the child at a contact service when a place at that service became available, by June 2014 this had only occurred on one occasion.
By mid-2014 the mother had made allegations that the father had abused the child to the Department responsible for child welfare, then known as Families SA (“the Department”) which was invited to intervene in the proceedings but declined to do so.
An expert appointed in the earlier proceedings (“the expert”) interviewed the family members in August 2014 and prepared a report that was released two months later. By this stage the father had not spent any further time with the child and the expert considered that a key issue was how to reintroduce him to the child in a safe and comfortable way that would allow for the gradual development of that relationship. The expert recommended a reintroduction process that involved professional guidance and as he felt this process was likely to be complex proposed reviewing the family in a further six to eight months. The expert also felt that there would be no workable way to achieve the reintroduction of the father to the child’s life without the involvement and co-operation of the mother.
After some difficulty a professional therapist (“the therapist”) was selected by the parties to assist the family in the process of reintroducing the child to her father.
The father spent time with the child supervised by the therapist on three occasions between February and April 2015 and also on three other occasions in the presence of the mother.
In June 2015 the proceedings were transferred to this Court. At around this time the mother objected to the continued involvement of the therapist in the reintroduction process and for the following six months the father spent no time with the child.
In November 2015 orders were made providing for interim arrangements pending the final hearing of the matter. Those orders provided for the child to spend time with the father initially in the presence of the mother and thereafter unsupervised each alternate Sunday. The arrangement for the father’s time in the presence of the mother occurred on two occasions only in November 2015.
In January 2016 the mother relocated to live in Adelaide, a significant distance from her former home taking the child and her older daughter from another relationship with her. The father was unaware that this had occurred.
The mother did not attend the next court event fixed in February 2016 and orders were made including a Recovery Order. The Recovery Order was subsequently executed and the mother and child were brought to the Adelaide Registry of the Family Court by police. On that date orders were made restraining the mother from changing the child’s place of residence or school and for the father to spend time with the child on two occasions prior to the next court event.
The father spent time with the child for only a limited period on one of these occasions.
At the next court event in March 2016 the mother was ordered to return to live with the child in the town in which the parties had previously been residing or a place closer to the father’s residence and was restrained from changing the child’s residence again.
Although the father was by this stage meant to be spending unsupervised time with the child each alternate Sunday and the parents did meet for handovers on many occasions, the child did not ever pass into the care of her father. Generally the child stayed in the close vicinity of her mother on these occasions and sometimes the parents did not meet at all.
In August 2016, 12 months after the initial assessment the expert interviewed the family for the second time.
In summary the expert on that occasion felt that the “most striking feature” of the matter was the lack of progress in achieving the development of a meaningful relationship between the child and her father and the mother’s failure to recognise the value of the father having a developed parental role in the child’s life. The expert concluded that the mother had found every means possible to prevent the development of the relationship between the child with her father through regular unsupervised time as intended and ordered by the Court.
By this stage the father had changed his position and sought orders for the child to live with him.
Throughout the balance of 2016 and up until the commencement of the final hearing in the first week of October 2016 the parents continued to meet for handover but on no occasion did the child leave with the father and spend unsupervised time with him. Each time the child remained in her mother’s arms and did not physically separate from her.
When the first four days of the final hearing in the first proceedings concluded on 7 October 2016 it had become apparent that the child had not always been attending school regularly throughout 2016 and had also not spent time with the father in accordance with the interim orders. On that date I made new interim orders for the child’s time with the father and ordered that the parties take all steps to enrol the child in a particular school. The mother was also restrained from being near or in the vicinity of any place at which the father was to be spending time with the child.
On 2 November 2016 further interim orders were made increasing the child’s time with the father including from January 2017 the introduction of overnight time each alternate weekend.
The child spent time with the father largely in accordance with the orders from October 2016, though the mother had difficulty in complying on the first occasion the child was to spend overnight time with the father and requested that police attend the location where that was occurring to carry out a welfare check.
The final hearing resumed in March 2017 and proceeded over four days. On the final day the expert assessed the child and her interactions with each of the parents. The expert’s observations and opinions based on this third assessment included that there had been a significant growth in the strength of connection and trust between the child and her father during the interim period.
The parties consented to further interim orders at the conclusion of the evidence on 17 March 2017 for the child to remain living with the mother and spend more extensive time with the father.
On 30 June 2017 I made final parenting orders for the future parenting arrangements for the child and delivered my reasons for judgment. Those orders brought about a significant change in the child’s life in that she thereafter lived with the father who had sole parental responsibility for her and spent substantial and significant time with the mother including five nights per fortnight (during the school term), half of the school holidays and on special days. Various other orders were made including restraints on each parent at handover, restraints on the mother from attending the child’s school with some exceptions and causing the child to attend upon a mental health professional without the father’s permission. Orders were also made restraining the father changing the child’s place of residence or school with some exceptions.
Events following the first proceedings
In July and August 2017 the mother instituted two appeals against the June 2017 orders (and one appeal against the interim orders previously made on 14 March 2017).
In September 2017 in accordance with the final orders of June 2017 the father facilitated the child receiving therapy from a psychologist to assist her adjustment to change in primary carer. After two appointments the psychologist formed the view that the child appeared to be tolerating the change well, there appeared to be no mood disturbance or significant behaviours of concern and that no further sessions were required.
Within weeks of the June 2017 orders the parties became engaged in ongoing disputes relating to a range of parenting matters as evidenced by text messages and emails which passed between them. These disputes related to matters such as the mother buying a mobile phone for the child without consulting the father, each of the parents withholding the child from school from time to time and questioning the other about the reason for this occurring, ongoing differences in opinion and actions concerning the child’s appropriate medical and dental care, the mother’s communication with the child and presence at the child’s school and each party’s understanding of the restraints imposed under the June 2017 orders. Issues also arose between the parties about the presence of the mother’s older daughter at the child’s classroom and the father’s concern that the mother was stalking the child. The father also had ongoing concern about the mother providing unsolicited advice to him in relation to a range of matters related to the care of the child and in particular about appropriate medical treatment.
Some of the matters in dispute between the parties about parenting were quite serious, such as the mother’s continued insistence upon taking the child to a chiropractor despite the clear statements by the father who holds sole parental responsibility that he did not want this to occur. Other disputes related to extremely minor issues such as the way in which the child’s hair should be styled, the lunch box she should use and each party’s view about the appropriate netball club the child should play for.
Within a few months of the June 2017 orders the mother began complaining to various people, in particular health practitioners, that the child was being neglected in the father’s care. There are records from the general practitioner attended by the family indicating that the mother regularly attended upon a doctor (and according to her evidence upon a chiropractor) to have the child’s medical condition assessed and treated while the father observed no particular concerns about the child’s health during this period. Some of the particular medical presentations are referred to in greater detail in this background.
The mother also began documenting the child’s condition by taking photographs of various part of her body from July 2017. In annexures to the mother’s affidavit (Exhibit 5), there are photographs of the child’s toes which depict peeling skin, of a finger said to depict a burn, of the child’s lips which are said to be “dry, cracked and bleeding” and of the child’s knee. These photographs are described by the mother to evidence “untreated issues” (of the child when in the father’s care).
The mother also took the child for dental treatment on many occasions without prior discussion with the father including to a specialist paediatric dentist in Adelaide. According to the mother’s affidavit she believes the father was neglectful of the child’s dental care.
In September 2017 the mother says that the child reported to her that the father “kicked her up the bottom” and complained that she couldn’t walk. The mother deposes to observing “severe bruising” on the child’s “vagina” and either side of her groin. The mother says she took photographs of those injuries on 13 September 2017 and tendered in the proceedings photographs showing a bruise on what appears to be the inner thigh of a female child. The mother did not report this complaint to police or any other authority at the time or arrange for any medical assessment or treatment for the child. The father denies assaulting the child at this time or on any occasion or causing her any injury or harm and is a matter to which I will return.
In November 2017 the father arrived at his home with the child and discovered bullet holes in a rear external wall and inside wall and window.
On 10 January 2018 the mother presented the child to a general practitioner reporting that the child had enlarged tonsils and an “excoriated anal and vaginal area” following being in her father’s care.
On 13 February 2018 the mother filed Notices of Discontinuance in respect of each of the appeals she had instituted and was subsequently ordered to pay the father’s costs in relation to those appeals.
In February 2018 the father commenced proceedings in a Magistrate’s Court seeking to change the child’s surname which at that stage was the same as the mother’s and did not include his surname. It was his proposal that her name be changed to a hyphenated surname with his surname appearing first and the mother’s surname appearing second. The mother agreed in response through her solicitor that the child’s surname be hyphenated, but proposed that her surname appear first. The proceedings were dealt with in the Magistrate’s Court but the parties disagree with what occurred on that day. The father subsequently obtained a birth certificate recording the child’s surname in accordance with his proposal. Subsequently, I understand that in circumstances which are not entirely clear, the mother was able to take steps to change the child’s surname again to her own surname.
On 15 March 2018 the mother attended at a police station with the child who was then seven and attended alone the following day. She reported some of her concerns about the father’s behaviour and about the way she had been treated in family law proceedings as well as raising an issue about proceedings in the State Magistrates Court in relation to the surname change.
On 1 April 2018 the mother again attended at a local police station wishing to speak to someone in relation to applying for a restraining order against the father. The mother told police that she was then in the process of making an urgent application through the Family Court and was worried about what the father’s reaction when made aware of this application. The relevant police record indicates that the mother was then considering not returning the child to her father for fear that there is ongoing abuse but as she did not have any proof of this she wanted her daughter to be interviewed by police “to ascertain what abuse was occurring”. Police advised the mother that an application for an intervention order would be considered if there were proof of an offence. The mother told police that she was taking the child to the doctor the next day “in hopes of disclosure to the doctor of abuse”.
Although there is no record of the mother having taken the child to her general practitioner in April 2018 the records produced on subpoena by the general practice include a hand written document by the mother containing complaints about the father’s care of the child. Under cross-examination the mother said that she had provided this handwritten list to one of the doctors at the medical centre at this time.
In May 2018 the father began a relationship with his current partner (“the father’s partner”) who lives in another town in the same region as the father together with her five year old child from a previous relationship.
On 6 October 2018 the mother presented the child to hospital in relation to a small cut on the child’s foot. The mother claimed that the child had an infected foot as a result of an injury that occurred when the child was in the father’s care.
From about November 2018 the parents had discussions between themselves about making some changes to the June 2017 orders by mutual agreement. In January 2019 the mother sent a text message to the father asking that he consider varying the June 2017 orders to change to a “week about” arrangement and having all restraints removed. The father engaged in some conversation with the mother about potentially varying the orders because he had some concerns about whether that the parenting arrangement brought about by June 2017 orders worked well for the child but they did not reach any agreement along the lines proposed by the mother.
On 26 or 27 January 2019 the child hit her head on a metal bunk while playing in her bedroom with her paternal half-sisters and developed a lump to the back of her head.
On Thursday 31 January 2019 the child spent one night in her mother’s care in accordance with the June 2017 orders. The mother claims that the child complained that her father had been “mean” to her.
In the following week, the child came back into her mother’s care on Thursday 7 February 2019 for the commencement of four nights with the mother in accordance with the June 2017 orders. The mother says that on this day the child reported to her that a week earlier she was thrown by the father onto a bunk bed with sufficient force that she hit her head against the wall, hit her legs against the bed and suffered bruising.
The following day, 8 February 2019, the mother attended at a police station after dropping the child to school to report the father’s abuse of the child. Police advised the mother they would commence an investigation which was to include an interview of the child later that day after school. The child’s interview with police is a matter to which I will return in greater detail but it suffices to say that the child told police about the recent occasions when the father had thrown her onto the bed and another occasion when the father kicked her in her bottom.
On 9 February 2019 the police issued an interim Intervention Order against the father for the protection of the child. This order did not have the effect of displacing the June 2017 orders though it appears that police were of the belief that it operated in this this manner.
On 11 February 2019 the child was due to return to the father’s care at the end of the school day. The mother did not send the child to school on that day or for the balance of the week. On the same day the father was contacted by police and informed that the child had been interviewed and made serious allegations against him. The father attended at the police station as requested and was served with the interim Intervention Order made two days previously.
Later on 11 February 2019, the father received a letter from the mother’s then lawyers informing him of the Intervention Order and their understanding that he would soon be interviewed by police and may be charged with assaulting the child. The mother’s lawyer also advised that the mother was retaining the child in her care and would be making an urgent application to suspend the existing parenting orders.
The father attended at the police station again at the request of police on 13 February 2019 for the purpose of an interview. He was not arrested or charged with any offence at that time.
The next day, 14 February 2019, the father filed an Initiating Application to revisit the parenting arrangements and also seeking that the child be returned to his care.
On 15 February 2019 the father’s solicitor sent a letter to the mother’s solicitor stating that the June 2017 orders remained in full force and effect despite the interim Intervention Order, demanded on behalf of the father that the child be immediately returned to him and advised that he had filed an urgent Initiating Application in the Family Court. The mother obtained some advice from her solicitor to the effect that the child should be returned to the father. She then took this letter to the police and informed them that there was a difficulty with the Intervention Order. Police then revoked the interim Intervention Order and issued a replacement Order which appears they again incorrectly understood would override the June 2017 orders.
On 1 March 2019 the father was charged with two counts of aggravated assault upon the child relating to alleged incidents in September 2017 and 30 January 2019. The father first appeared before a Magistrate’s Court in relation to these criminal charges on 5 March 2019 when the proceedings were adjourned to 4 April 2019. On the same day these proceedings were listed for an interim hearing in this Court on 26 March 2019.
On 26 March 2019 an order was made for the parties to attend an appointment with a family consultant the following day and requiring the mother to do all things necessary to arrange for the child to also attend that appointment. The ICL in the proceedings was reappointed on the same day.
The following day, 27 March 2019, the parties and child attended an appointment with the family consultant who gave oral evidence in the hearing that occurred later that day. Pursuant to orders made on 27 March 2019 (“the March 2019 orders”) the mother’s time with the child was suspended, the mother was restrained from contacting or attempting to contact or approach the child or attending her school and recovery of the child to the father was to be effected by him collecting the child from Child Dispute Services at the end of the court day. The proceeding were adjourned for delivery of judgment the following day and the child was returned to the father’s care in accordance with those orders.
On 28 March 2019 I delivered my reasons for judgment (“the March 2019 judgment”) in relation to orders made the previous day and made directions in relation to a further interim hearing with respect to the mother’s time with the child which was fixed for 16 April 2019.
On 8 April 2019 the second of the interim Intervention Orders issued against the father for the protection of the child on 15 February 2019 was revoked by a Magistrate.
On 16 April 2019 at the court event listed for the purposes of determining the interim arrangements for the child’s time with the mother, the mother brought an oral application that I recuse myself from further hearing which required determination prior to proceeding with any other issue.
On 3 May 2019 I dismissed the mother’s application for recusal and delivered reasons in relation to that matter. Orders were also made with the consent of the parties for the child to spend time with the mother at a contact service for two hours each fortnight on at least six occasions and for the ICL to provide the March 2019 judgment to the director of the contact service and take steps to arrange for reports in relation to the contact events to be prepared and provided to the family consultant. A further order was made that the parties and child attend upon the family consultant for purposes of the preparation of a Family Report.
On 7 May 2019 the two criminal charges against the father were withdrawn by police prosecutors in the Magistrates Court and an order in his favour for his costs in relation to those proceedings was made.
The mother’s time with the child at the contact centre commenced on 8 June 2019. It was subsequently agreed by the father and orders were made to this effect that the mother’s other daughter (the child’s maternal half-sister) be permitted to attend with the mother at these contact events.
In mid-June 2019 the mother began representing herself in the proceedings and filed a Notice of Address for Service to this effect on 14 June 2019.
On 20 June 2019 the mother filed three Applications in an Appeal seeking an extension of time to file a Notice to reinstate the previous appeals against the June 2017 orders, to adduce further evidence in relation to those appeals and seeking an extension of time to appeal against the March 2019 judgment, the judgment of 3 May 2019 and various ancillary orders. These applications were not served upon the father or ICL in accordance with directions made by the appeal’s registrar. It is apparent from the documents upon which the mother relied in these applications that it was then her case that in the March 2019 orders and judgment I demonstrated bias, made findings without supporting evidence and errors of fact which “ultimately placed the child’s safety, health and wellbeing being at risk”. In her affidavit she also made new allegations about the father’s neglect of the child since the March 2019 orders.
In the same month the mother contacted the father directly in an attempt to come to an agreement privately with respect to the child’s future care rather than proceed with resolution of the dispute through court proceedings. On 1 July 2019 the father wrote to the mother informing her that he did not wish to make any proposals about care arrangements for the child at that stage and intended abiding by orders made by the Court. A few minutes after this email was sent the mother forwarded to the father’s solicitor and the ICL the copies of her Applications in an Appeal filed 29 June 2019.
The mother continued to spend fortnightly supervised time with the child (accompanied by the child’s half-sister) in accordance with the orders.
On 9 July 2019 the mother contacted Child Dispute Services stating that she would not be attending the family assessment appointment fixed for 17 July 2019. The father and child only subsequently attended those appointments with the family consultant.
The Family Report was released on 26 July 2019 and the opinions and recommendations of the family consultant are a matter to which I will return. It suffices to say for the purposes of the background that the family consultant recommended the child reside with the father and he have sole parental responsibility for her, that the mother’s time with the child continue to be supervised, that the mother be restrained from bringing applications to the Court and that the mother undertake a psychiatric assessment.
Throughout July and August there continued to be directions hearings before a judge of the Full Court in relation to the mother’s applications in her appeals.
By 22 August 2019 when the mother had completed her sixth period of contact with the child supervised by the contact service the report prepared by the team leader of that service was very positive about the mother’s interactions and both parties’ support and focus upon the child throughout the process.
On 27 August 2019 I fixed the outstanding matters in relation to the interim arrangements for the child for hearing on 15 October 2019 and gave the parties liberty to file a further affidavit in relation to this issue and made other directions for the preparation of that further interim hearing. I also made a notation that the mother indicated to the Court that she objected to and did not consent to being psychiatrically assessed by an order of the Court as recommended by the family consultant.
On 4 September 2019 the contact centre staff informed the parties of a schedule for a further six supervised contact events between late September and the end of November 2019.
The mother continued to propose to the father through his solicitor that the parties resolve the parenting arrangement by agreement and although the father at one stage requested more time to consider this proposal he ultimately rejected it on 13 September 2019.
The hearing in relation to the outstanding issue of the mother’s time with the child pending final hearing took place on 10 October 2019 with orders being made and judgment delivered on 25 October 2019. Those orders provided for the then current arrangement of fortnightly supervised time and restraints on the mother to continue pending final hearing.
On 31 October 2019 the final hearing of this parenting application was fixed to commence on 10 February 2020. Various trial directions were made including that in the event the mother wished to undergo assessment by the family consultant or consent to a psychiatric assessment by an expert appointed by the Court she was to inform the ICL of the same within 14 days.
The mother did not advise the ICL within the timeframe provided of her wish to undergo either of these assessments.
On 15 November 2019 the father filed his Amended Initiating Application seeking final orders including that the child live with him, he have sole parental responsibility for her and that the mother’s time continue to be supervised until the commencement of 2023. Upon compliance with various conditions including psychiatric assessment and treatment, the father sought orders that the mother’s time become unsupervised in 2023 and occur once per month for a period of four hours, and that he be permitted to change the child’s school and residence to another place within the state.
A few days later, on 19 November 2019 the mother’s various applications in an appeal were dismissed and she was ordered to pay the costs of the father and ICL thrown away in relation to the various court events related to these appeals.
Throughout November and December 2019 the mother continued to spend supervised time with the child at the contact centre. On one of these occasions, on 30 November 2019 the child reported to contact centre staff very negative matters in relation to the father’s conduct including that he “shouts at me” and “before he has grabbed me by the arm and leg and thrown me on the bed, he nearly broke my knee”. This “disclosure” was reported to the Department now known as the Department of Child Protection. It was assessed as “notifier concern” which did not meet a statutory threshold required for departmental intervention and accordingly no investigation was carried out by the Department. In a letter dated 31 January 2020 to the ICL tendered in the proceedings the Family Court Liaison Officer from the Department further stated in respect of the notification “it is worthy of note that there may be issues of coercion and false reporting as a result of Family Court issues”.
On 29 January 2020 the mother filed a further Amended Response seeking orders that the child live between the parties on an equal shared basis and that they have equal shared parental responsibility for her.
The final hearing took place over five days commencing 10 February 2020 and judgment was reserved on 14 February 2020.
THE MATTERS IN DISPUTE
Although there are many factual matters in dispute between the parties, very few require resolution for the purposes of this hearing due to the way in which each party’s case was run.
Although it is incongruous with the orders she seeks, the mother maintained the case that the father physically abused the child on at least two occasions and seeks a finding that this has occurred.
The main contention of the father does not relate so much to resolving a factual dispute between the parties but depends upon the expert evidence. It is his contention that the mother poses an unacceptable risk of harm to the child from being subjected to psychological abuse if the child is to spend time with the mother unsupervised or for significant periods.
Has the father physically abused the child or does he pose a risk of harm on this basis?
Although having regard to orders proposed by the mother I do not understand the basis upon which she seeks a finding that the father physically abused the child on at least two occasions, it was made very clear in final submissions on her behalf that she does seek such a finding.
It is the father’s case that he has never been violent towards the child and in particular he denies these specific allegations made against him. As it is his case that the mother poses an unacceptable risk of psychological harm to the child (including by creating the circumstances in which a false narrative about the dangers posed by him has been permitted to flourish) he seeks a finding that he has not physically abused the child as alleged and does not pose any risk to the child on this or any other basis.
The alleged assault in September 2017
According to the mother’s affidavit, the child has continuously reported to her since June 2017 that she was “scared of the father because he had kicked and smacked her”. She does not depose however to any specific complaints made by the child including of an alleged assault in September 2017 which assumed particular significance in the proceedings. The mother only deposes to this alleged event in the part of her affidavit relating to a subsequent alleged assault. In the course of a paragraph concerning an interview of the child by police in relation to the later alleged assault the mother deposes:
I showed the police photographs I had taken of [the child]’s groin area in September 2017, which showed bruising to both sides of her groin/inner thigh. These were taken when [the child] told me the father had kicked her up the bum in September 2017.
According to the mother the photographs annexed to her affidavit were taken on 13 September 2017. These photographs show a bruise to the inner thigh of a female child adjacent to her genital region. The mother does not depose to any other matters related to this alleged incident other than reporting the matter to police approximately six months later, a matter to which I will return.
Under cross-examination the mother agreed that she did not report this alleged assault to police at the time claiming that she was scared to do so as a result of her allegations against the father made in the previous proceedings not having been believed.
The mother also agreed under cross-examination that she was legally represented at the time of this alleged assault having just recently lodged appeals against the June 2017 orders. She said that she did not make a complaint about the September 2017 physical abuse as she was advised it “may affect my appeal, and to just keep recording things as they arose”.
The mother was also cross-examined about a statement that she later gave to police (on 15 February 2019) in which said the following about the September 2017 assault:
I believe the father has abused [the child] on other occasions too. In September 2017, [the child] told me her father had kicked her up the bottom whilst she was in his care. On the day [the child] came into my care on the Thursday, I volunteered at the school with [the child]’s class. [The child] said she couldn’t walk and appeared to be in significant pain. She tried to lift her dress and to show me in the classroom where it was hurting but all the children were there and I told her I would have a look tonight. [The child] had thick navy stockings on so could not show me without taking them off. After school she was feeling a bit better and played with her as normal but the Friday morning she began complaining again and I told her on the way to school I would look at it after school. When I did finally look at her bottom there was severe bruising on her vagina and either side of her groin. I didn’t know what to do. I asked her how this happened. She told me her father had kicked her up the bottom really hard for no reason. I took photographs of her injuries and still have them stored on my phone.
The mother also deposes in this police statement to not reporting the incident to police at the time on her solicitor’s advice. She also states that she did not make a report to a doctor on the Friday night “as it was late” or take the child to a hospital as the father’s sister works there. She deposes to contacting her lawyer the following Monday morning and being advised that the photos were inadmissible “as they weren’t good enough” and that it was too late to report the matter.
Under cross-examination in relation to the police statement the mother confirmed that when the child’s condition first came to her attention on the Thursday the child appeared to be in significant pain and was reporting that she couldn’t walk. The mother says she observed that the child could hobble but couldn’t walk properly. Despite these observations the mother agreed that she left the school after her period of volunteering had finished and did not seek medical attention when she collected the child later that same day. The mother also confirmed that the child’s leg had improved throughout the day on the Thursday.
The mother further agreed that she took the child to school on the Friday and on their way to school the child reported that her legs hurt. The mother confirmed that on the Friday night the child reported to her what had occurred and that she looked at the child and took the photographs. The mother said that she did not ring the father to clarify the position because the child asked her not to. The mother denied thinking that the child’s claim of being unable to walk and hobbling was exaggerated after having observed the bruising on the Friday night. The mother also agreed that the child’s teacher did not raise any concerns with her about the child’s presentation at school at the time.
The mother maintained under cross-examination that the child was physically abused by the father in September 2017 and that the photographs admitted in the proceedings are evidence of that abuse.
Medical records tendered in the proceedings indicate on 29 September 2017 the mother took the child to a general practitioner reporting a cough. It is also recorded that the mother reported “child was kicked in backside, had bruising two weeks ago”.
The mother attended at a police station in relation to this complaint six months later in March 2018. Police records indicate that she first attended on 15 March with the child who was then aged seven and returned the following day to speak to police without the child. The record then says the following:
Relates to ongoing custody dispute with [the child]’s father [named]. [The father] has majority custody of their daughter and has recently applied to the courts for a name change for their daughter [name of child]. [The mother] has been to her lawyers about disclosures from her daughter that [the father] yells at her, had kicked her in the “bottom” and other incidents that the mother considers as beyond reasonable chastisement. Her lawyers have advised her that she does not have enough evidence to raise it in their Family Court proceedings nor to bring it to police but she wanted it recorded, she has concerns about [the father]’s behaviour. There was nothing she disclosed to me that raised concerns in order to do CARL [child abuse or neglect] notification. The daughter appeared to be in good health and well adjusted. She was a bit shy about talking initially and both her and the mother didn’t want [the father] spoken to. This street check submitted to record fact that mother has concerns that she has been let down by the Family Court as the father has been granted primary custody and re her concerns about the treatment of her daughter by the father [named].
Under cross-examination the mother agreed that the police record was accurate and said that “to some degree” she had explained to the child why she was taken to a police station. Subsequently the mother appeared to question the police records and denied that she had attended on the first occasion for the purposes of making allegations against the father arising from the alleged incident in September 2017. The mother then said that she did not raise this incident with police but that the child may have raised it spontaneously. After being pressed as to this matter the mother agreed that she took the child to the police on this occasion for the purposes of having her interviewed but did not believe she raised the event of September 2017. She maintained that the child raised “the fact that he kicks her” with police in a general conversation and the child volunteered information in response to “very general questions”. The mother then claimed that the purpose for taking the child to the police station on this occasion was to “have a talk with an officer” in relation to the name change. The mother was unable to explain why police would take an interest in a dispute between she and the father about the child’s name change.
The father’s trial affidavit contains very limited evidence about the alleged assault in September 2017. He deposes that he first became aware of this allegation when asked by police to attend a police station for the purposes of an interview on 13 February 2019 and during that interview was informed by police that the child had complained that in 2017 when she was six years old he “kicked her up the bottom”. He also deposes to being charged with two counts of aggravated assault upon the child relating to two incidents including the one said to have occurred in September 2017 but that both charges were subsequently withdrawn and the interim Intervention Order made for the child’s protection revoked.
The father deposes that the only occasion of which he is aware that the child hurt her bottom was on 20 October 2018 when the child went to sit on a bench seat but missed it and “landed on her bottom on the ground quite hard and also hit her head on a pole behind her”. He deposes that following this incident the child cried a little that he consoled her but it did not take long to calm her down and that she did not complain of any pain nor did he recall seeing any bruising or obvious sign of injury. The father denies kicking the child or throwing her or otherwise harming her in any way or using physical force against her.
The only cross-examination of the father by the mother’s counsel in relation to this incident concerned the child’s propensity to “lie”. In this respect the father was asked whether she had lied when she alleged that he had “kicked her up the bottom”. The father agreed that she had. It was not suggested at all to the father that the child had been telling the truth when she made this allegation and overall the tenor of the cross-examination was that the child had lied. It was not put to the father in cross-examination that he had kicked the child in September 2017 or at any time, nor was it suggested to him that he had harmed the child in any other way at this time.
The other evidence in relation to this alleged incident is contained in answers given by the child in her interview with police on 8 February 2019. The focus of that interview was the then recent complaint relating to the alleged assault in late January 2019. Towards the end of the interview the child was also asked whether the father does “anything else that’s mean”. The child responded “I don’t want to think”. She was asked whether “yelling is the worst thing” and the following answers were then given by the child in response to further police questions:
[The child]yes, oh and I (stands up) I didn't mention that he kicks, hits and smacks me, (sits down), because, I, I got a, he kicked me so hard (stands up) um, I got a bruise, and he always kicks me on the floor (sits down)
[Police Officer] when did that happen? That he kicked you so hard you got a bruise?
[The child](stands up) um he kicked me so hard I got the biggest bruise, it was like my whole bum cheek (holds right bottom cheek), and um, he, (sits down) really, hurt so much (stands up) that I couldn't walk
[Police Officer] so how long ago was that?
[The child]um, about when I was about six, I think, I think it was when I was 6 (sits down)
[Police Officer] ok, so tell me everything about that time, what happened?
[The child]so I was sitting on the floor, and I was playing with my toys, and um he came up with really hard shoes and kicked me (stands up and motions kick) right in front of the shoes (sits down) for no reason
[Police Officer] for no reason?
[The child]no reason
[Police Officer] ok and what happened after that?
[The child]I really hurt myself, and back then I didn't know he was going to say um 'when you cry it ' s a baby' 'you're being a baby', so I cried, but he said 'stop, it was only a little soft kick' but it was like (stands up, motions kick) so hard, he like got a run up and went (motions kick).
[Police Officer] so was that at dad's house?
[The child]Yes
[Police Officer] at the same house where he lives now?
[The child](over the top of Police Officer’s question) I was sitting on the carpet in the lounge room playing with my toys, he came out of nowhere and (stands up and motions kick) did a run up and kicked me for no reason
[Police Officer] what toys were you playing with?
[The child]um, these dragon toys
[Police Officer] was anybody else there?
[The child]No
[Police Officer] did you show anyone else the bruise on your bum?
[The child]I showed my mum it was like (holds right hand to right bottom cheek), like a hole, there is also a lump there too, it was that hard, and I couldn't walk, I had to hop and use my crutches that I have (re-enacting hopping with crutches)
When further questions were asked about this incident the child said that the father had no reason to kick her, did not say sorry for doing it and that she did not show him the bruise “because she knew he didn’t care”.
The January 2019 alleged assault
Although the mother makes some general allegations about the father’s physically abusive behaviour the second specific occasion upon which she seeks a finding that the father assaulted the child was said to have occurred on about 30 January 2019.
It does not appear to be in dispute between the parties (in that the father was not challenged about his version of events under cross-examination) that there were two incidents prior to the child coming into the mother’s care on 31 January 2019. The first of these incidents occurred on the weekend of 26 and 27 January 2019 when the child bumped her head on a metal bunk while playing in her bedroom with her two paternal half-sisters. According to the father’s unchallenged evidence this was a relatively minor event which he responded to by providing the child with a bag of frozen peas to put on her head to reduce a lump that had formed and consoling the child. The father also deposes that a couple of days later on 29 January when he took the child to have a haircut she “proudly” told the hairdresser about the lump on the back of her head which the hairdresser commented she could feel. The father said the child showed no sign of distress and did not mention the lump again.
The second incident occurred a day or two later on 29 January 2019 when the father reprimanded the child in the course of wrapping a birthday present for the father’s partner as the child was not concentrating on the task and writing her name properly on the wrapping and the father became frustrated. The father deposes that the child also became upset and frustrated and he sent her to her bedroom for between five to ten minutes. After that the father says he asked the child to come out of the room and the task was completed happily.
According to the mother’s affidavit on 31 January 2019 when she collected the child at the conclusion of school for the commencement of her midweek night in the mother’s care, while waiting in the car the child reported to her that her father had been “so mean”.
The mother deposes that when she asked the child what she meant the child said:
“Last night I was tired and I wrote on [the father’s partner’s] birthday present, dad was really angry and I got in heaps of trouble because I didn’t do it right and he put me in my bed. I was in the room in the dark for about an hour but it felt like three hours”.
The mother deposes that on the same day while driving the child reported that her legs and back hurt and that when she slept that she couldn’t feel her legs so the mother telephoned a chiropractor to obtain an appointment the following day but none were available.
Later on the same day, 31 January, the mother says that she noticed that the child had a large bruise on her right leg below her knee which appeared hard and very swollen. The mother deposes that the child was unable to explain how she got the bruise. No photographs of the bruise were adduced in evidence.
The following day the child returned to her father’s care for a week. She then commenced a block period of four nights with the mother in accordance with the June 2017 orders after school the next week on 7 February 2019. The mother deposes to taking the child to see a chiropractor and the child telling the chiropractor her leg hurt and pointing out where it was sore. No records of the chiropractor were adduced in evidence.
The mother deposes that when she returned home that day she asked the child to tell her how the father had put her to bed the previous week when the child had complained that the father had made her stay in her bedroom for hours. The mother deposes that the following conversation took place:
[The child] said “he picked me up and took me into my room and threw me at my bunkbed” I repeated “he threw you?” and she said “yes and hit the wall with the back of my head and neck and my legs hit the rails”. When I asked her why she didn’t tell me that last week she said she couldn’t because she was too scared and because “he told me not to tell anyone”, When I asked [the child] if the father apologised to her she replied “no he yelled at me, turned off the light and slammed the door”. I asked [the child] to tell me again what had happened so I was sure I had understood her correctly. She did and added that the father got her back out of bed after she had just fallen asleep to write on the present again. [The child] said after she finished writing on the present and had gone back to bed, dad told her she can’t tell anyone he got angry and also told her off for being naughty. [The child] said “he told me I can’t tell anyone or he will be really really more angry with me”.
The mother then deposes to attending the local police station after dropping the child to school on 7 February 2019. This must be an error as there is no dispute that she first attended on 8 February 2019. The mother says that she did so to obtain some advice from a domestic abuse officer being an independent person who could assess what the child had told her “and to put it on record”.
Arrangements were made for the child to attend with the mother after school later that day for the purposes of an interview. The interview was then undertaken by two police officers for about one hour in the absence of the mother.
In the course of the interview, after some preliminary introductions, general conversation and very basic questions concerning the child’s understanding of the difference between the truth and a lie one of the police officers led the child to questions concerning the alleged recent incident by saying to her “mum told me that when you went to go to see somebody yesterday an appointment that you had I think after school”? The child answered “yeah, my leg hurt because my dad throwed me on the bed, the bunk bed with bars on the side”. The following questions were the asked and answers given:
[Police Officer] Alright so tell me everything about what happened then, from the beginning
[The child]um, um, I've still got a sore head and legs, so he threw me on the bed sideways (stands up), so sideways, he threw me up and I hit the bar (sits down) with right here (pointing to right leg), and it really hurts on this leg, really, and I hit my head on the wall, it was really bad, and I, I couldn't cry because he told me not to and he says if I cry I'm a baby
[Police Officer] ok, and what happened then? ok, and what happened then?
[The child]I tried not to cry and he yelled 'I' m so angry at you' and slammed the door and went out
[Police Officer] and what happened then
[The child]then he, he turned all the lights and the curtains and everything before he went out the door and it was all pitch black
[Police Officer] yep, and what did you do then
[The child]I was so scared, for him to get back in, so I hid under the rug
[Police Officer] mm hmm, and then what happened?
[The child]He came back in, still yelling, and he told me to come out and he had a big yelling talk out with me on the table.
The child then reported that after the yelling talk she ran to the toilet and then “quickly grabbed a drink and ran into bed”. After returning to bed the child reported that the father yelled at her “you are a very bad girl tonight” and slammed the door again. When asked further questions about the incident the child became very animated, standing up and acting out the incident using the furniture in the room as props.
Discussion and findings
In M v M[2], the High Court said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
[2] [1988] HCA 68; 166 CLR 69.
In Johnson & Page[3] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[3] [2007] FamCA 1235 at [72].
It has subsequently been approved that the same standard of proof applies to other forms of abuse[4] and is applied when determining the allegations of physical abuse in this matter.
[4] See eg Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).
I am not satisfied to the requisite standard that the father physically abused the child on any occasion and in particular in September 2017 or late January 2019 for the following reasons.
In relation to the September 2017 alleged assault first there is a lack of clarity about what the father is alleged to have done and in particular about the severity of the injuries the child is said to have suffered as a result. While it is generally alleged that the father kicked the child “up the bottom” or “in the bottom” the nature of the alleged assault varies significantly when considering the differing descriptions of the child’s alleged injuries.
The mother’s evidence is that when she first became aware about the child’s condition following the assault the child appeared to be in significant pain, and reported that she couldn’t walk. The mother says she observed herself that the child could hobble but couldn’t walk properly. In her statement to police the mother describes that when she did finally look at the child’s bottom (the following day) “there was severe bruising on her vagina and either side of her groin”. In other parts of her evidence the mother describes the child’s bruising in similar terms. Under cross-examination the mother agreed that she took photographs of the child’s bruises on the Friday evening, one day after she had first noticed the child’s difficulties with walking and that the photographs depict the injuries sustained by the child from the assault.
According to the child’s own account of the incident, she “got the biggest bruise” “it was like my whole bum cheek” and there was “like a hole, there is also a lump there too” (while holding her right hand to her right bottom cheek).
The photographs tendered in the proceedings as part of the mother’s annexures (Exhibit 5) show one bruise on one of the child’s inner thighs adjacent to her genital region. In my view it is a significant exaggeration to describe the bruising depicted as “severe” and that it is located on either side of the child’s groin. It is also completely inconsistent with the description of a serious bruise, lump or hole on the child’s buttock.
Further, I consider the mother’s evidence in relation to the photographs themselves to be unreliable. In particular, according to her affidavit she took the photographs in question on 13 September 2017 and she clearly stated a number of times in cross-examination that they were taken on the Friday evening, the second day of the four day block when the child was in her care. I take judicial notice of the fact that in 2017, September 13 fell on a Wednesday being a night of the week when the mother did not have the child in her care.
I consider the claim that the child was observed to be hobbling rather than walking properly is also likely to be significantly exaggerated as it is unlikely that a child in this state would not have come to the attention of any other person such as a school teacher. In my view it is also highly unlikely that the mother would not seek medical attention (or even attention from a chiropractor which she considered appropriate on other occasions) if the child had difficulties walking or was bruised to the extent that she claims and regard the mother’s explanations for this failure as spurious, I also consider it likely that the mother would have made a complaint to police or even the Department at the time rather than six months later if her claims about the seriousness of the child’s injuries were true and do not accept that she acted upon legal advice in this regard.
It is also of note that the mother did not report any complaints about the assault in which she claims the child was significantly injured to a doctor until two weeks later when she referred to this matter in the course of seeking attention for the child in relation to a cough.
I am of the view the child’s account of this alleged assault is also likely to be unreliable. One of my findings in the previous proceedings which was adopted in the renewed proceedings is that the child has a propensity to lie or tell stories critical of the father which have no basis in reality, as a means to navigate the conflict between her parents and the mother’s case was also conducted on this basis in these proceedings. The child also did not refer initially to this incident during the interview and then seemed to suddenly remember it. She starts by saying “oh and I didn’t mention” and then goes on to make general complaint that the father kicks, hits and smacks her. This then becomes elaborated to making a complaint that she was kicked so hard that she received a very extensive bruise (“like my whole bum cheek”) and that she was in so much pain that she couldn’t walk. With each retelling in the police interview the child’s version became more elaborated to the extent that she finally claimed that the father “came out of nowhere…and did a run up and kicked me for no reason” and that she was injured so badly that she had to use crutches, a matter not reported by the mother.
The family consultant was asked under cross-examination to express an opinion about the interview of the child by police. In answering this the family consultant first gave evidence of her expertise in the forensic interviewing of children having worked as a senior psychologist for a child protection service for 13 years which involved the forensic interviewing of children where there were allegations of abuse on a daily basis. When asked whether she had any comment to make about the child’s answers or content of the answers or anything about her presentation the witness said that looking at the child and hearing her narrative she found herself “going back to the view that this is not adding up”. The family consultant explained that the child’s narrative and affect was not congruent with the narrative of abuse. She also expressed the view that some of the questions asked by the police officer were leading in that they suggested a conclusion had already been made in the question.
The family consultant was shown the statement of one of the police officers who conducted the interview who had attached weight to the fact that the child had provided contextual information to her complaint. The family consultant did not agree with the weight attached to this matter and considered the context provided as more consistent with the expectations of a four year old. It was the family consultant’s view that it would be expected that a child of almost nine years of age would be able to provide “a really coherent narrative about what happened” which in her view was not provided by the child in the interview and “to have a congruent affect” which the family consultant also considered was lacking.
It is also of significance in my view that although the mother gives no clear account of the child reporting this incident to her in her affidavit and seeks a finding that the father did assault the child on this occasion it was not put to the father that he had done so. The father was also not challenged about his sworn denial that he had ever assaulted the child which denial I consider weighty evidence of itself.
I also consider it unlikely that the father would assault the child only three months after judgment was given in which I found there was no unacceptable risk that the child may be harmed by being physically abused in his care and that at almost exactly the time of this alleged incident the child was seen by a psychologist and found to be managing with the change of residence well.
It also seems highly unlikely to me that the mother would have continued to make the child available to the father if the child was injured as she described while in the father’s care or that she would continue to negotiate with the father in an effort to change the parenting arrangements to one which entailed a continuation of his significant involvement in the care of the child.
In my view many similar observations may be made about the mother’s evidence in relation to the second alleged assault in late January 2019 which are equally weighty in determining that this further allegation has not been proved to the requisite standard.
Overall I am of the view that the child’s account of the January 2019 alleged assault (in a similar vein to the September 2017 alleged assault) is likely to be unreliable. In addition to the well documented history of the child making serious complaints about the father which can be proved to have no factual basis, the child’s presentation in the interview is incongruent with the incident that she is describing. The child uses dramatic language and with each retelling of a particular event embellishes her account including adding complaints of the most serious order such as that the father threatened to kill her. These accounts also have an uncanny resemblance to the mother’s accounts at times of matters that can be seen to be an exaggeration, such as her description of the child’s bruising shown in the photographs. I also attach weight to the family consultant’s evidence that the child has over the years become “cued” or expected to make complaints about the father’s conduct whenever she is asked questions about her family.
Once again the timing of the allegation in the context of these proceedings is significant. In this regard I attach weight to the fact that only a couple of weeks prior to allegedly hearing of the child’s complaint about the father’s conduct in January 2019 the mother was negotiating with him about reaching an agreement for shared care without the involvement of the Court.
I also consider it unlikely that the mother would not have sought immediate medical attention for the child following the second alleged assault if she is to be accepted as accurately reporting the terms of the child’s complaint to her which could only be considered as a complaint of a serious assault. The mother claims instead to have taken the child to a chiropractor who is said to have made certain observations but this evidence is not corroborated by evidence such as the chiropractor’s records.
Further, there is no evidence to corroborate the mother’s claims about her observations of a large bruise on the child’s knee. I consider it likely that if the mother had genuinely seen such an injury she would have taken a photograph of it considering her pattern of recording all sorts of alleged injuries in this manner and the advice she says she was given to keep such records.
I attach no weight to the fact that the father was initially charged in relation to either of the alleged assaults. It appears that despite his denials to police (consistent with his denials in this court) the decision to charge the father was based entirely upon the child’s account in her interview with police in February 2019. At least one of the police officers subsequently cast doubt on the reliability of the child’s account and the prosecution was withdrawn and discontinued with the costs of the father ordered to be paid.
It also appears likely given the father’s evidence that two events around the time of the alleged January 2019 assault have been conflated and embellished by the child to her mother and police.
Overall I consider it a matter of great significance that the mother incongruously seeks to promote an order for shared care and shared parental responsibility while simultaneously seeking a finding that the father quite seriously assaulted the child on two occasions and her contention in some parts of her evidence that this forms part of a pattern of behaviour of a similar kind by the father. The family consultant when commenting on this incongruity gave evidence which was not challenged about the likelihood of a person engaging in conduct of this kind continuing to do so and that promoting an arrangement in which such an abusive parent is to continue to play a significant caregiving role could be seen as non-protective behaviour by the mother herself.
In all of the foregoing circumstances I do not make a positive finding that the father assaulted the child on either of these occasions and am also satisfied to the requisite standard that he did not do so.
Curiously, although the mother seeks a positive finding that the father had twice assaulted the child and gave evidence under cross-examination that she believes that the child was still at risk of physical and psychological risk in the father’s care, in final submissions her counsel did not contend that the father poses an unacceptable risk of harm to the child on any basis.
The only basis on which it could be found that the father poses any risk that he may harm the child through physical abuse in the future is that he has allegedly assaulted her in the past. As I have made a positive finding that he did not abuse the child on either occasion I am also satisfied that he does not pose a risk to her on this basis in the future.
Does the mother pose an unacceptable risk of harm to the child?
As noted earlier, it is central to the father’s case that the mother poses an unacceptable risk of harm to the child arising from psychological abuse. As the magnitude of harm is so great if this abuse were to occur, he also contends that the only way to mitigate that harm is through limiting and imposing supervision on the mother’s time for at least a number of years. The father’s case in this regard relies upon the application of the expert’s opinion to the undisputed facts rather than requiring the resolution of disputed versions of events between the parties.
The expert evidence
As set out in the background, a family consultant has had some involvement and provided an expert opinion to assist the Court in resolving the proceedings from the early stages of the father’s application to revisit the parenting arrangements. The family consultant first saw the family on 27 March 2019 then assessed the father and child for the purposes of a Family Report which the mother declined to attend (despite an order to this effect) in July 2019.
Child Inclusive Conference March 2019
The father’s application for the return of the child and interim orders was listed for 27 March 2019 and for the assistance of the Court on that day directions were made for the parties to attend upon a family consultant for the purposes of a Child Inclusive Conference.
The preliminary expert advice of the family consultant is contained in a Child Inclusive Conference Memorandum to Court dated 28 March 2019 in relation to preliminary assessment of the parties the previous day. The child at that stage had recently turned eight. The context of the assessment was that the father had commenced proceedings approximately six weeks earlier in response to the mother withholding the child from him at the end of her weekend time on 11 February 2019 on the basis that the child had made complaints of two physical assaults to police and an interim Intervention Order had been made against the father for the protection of the child.
In her Memorandum to Court the family consultant observed that the father “appeared bewildered by the turn of events and concerned about [the child]’s psychological wellbeing”. She recorded that he “appeared unable to comprehend how the allegations against him had arisen, and described reviewing events and interactions with [the child] in an attempt to uncover a thread of information that could explain the basis for the allegations”. The family consultant also observed that the father “appeared focused on [the child]’s psychological wellbeing, and expressed considerable concern about the maladaptive ways she had learnt to navigate between her parents’ households, and the negative impact on her if there were further proceedings in relation to her care”.
The family consultant reported that the mother described a history of concerns with regard to the father’s treatment of the child but that “her affect seemed incongruent with the concerns she raised”. The mother told the family consultant that there was “a lot of psychological emotional abuse” and “smacking and kicking and pushing and pulling” and reported that the child was terrified of the father and “fearful every time she goes back into his care” adding that she “know[s] what he is like, he has abused me as well”. The mother also reported to the family consultant that despite these long held concerns she had tried to co-operate with the father, to no avail. At that stage the father was also facing the two counts of aggravated assault in respect of which the mother said that she could not see how he could escape a conviction noting that “he’s got away with so much for such a long time. He’s lied and lied and lied throughout the entire proceedings and he has got away with it”.
For the reasons given I accept the evidence of the family consultant that the child would be placed in an untenable position if orders were made that would see her move between two households where the level of trust between the parents is so low and where each has ongoing concerns about the care provided by the other parent. The family consultant was not significantly challenged about her opinion that any arrangement which involved the child spending overnight or unsupervised time with the mother would be detrimental to the child and likely to cause her psychological harm.
The family consultant did however acknowledge that it is important for the child to continue to share a relationship with mother through regular contact. Although she initially felt that the mother’s time with the child should occur fortnightly, the family consultant ultimately agreed an arrangement under which the child spends time with the mother at a contact centre each three weeks or supervised by a professional supervisor each four weeks until at least around the age of 13 is appropriate.
It is highly likely given the pattern of care throughout the child’s life (albeit that she appears to have adjusted reasonably well to the very significant change that occurred in March 2019) that the child will experience a real loss if orders are made as proposed by the father and ICL. To assist the child in her change in circumstances, that is, ongoing limited supervised time with the mother, the family consultant agreed that that therapy should be facilitated for the child and these recommendations have been incorporated in the proposal of the father.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
The mother’s proposal of an equal shared parenting arrangement does not entail any significant expense for the parties. Her proposal is also unlikely to result in any practical difficulties in the sense that the parents were able to facilitate shared care arrangement following the June 2017 orders.
The proposals of the ICL and the father bring with them great practical difficulty. The ICL’s proposal would see the child continue to be taken to a contact centre about 270 kilometres from her home every two weeks for a number of years. The practical difficulties entailed in this travel may be reduced if the father moves to a location closer to the contact centre.
The father’s proposal involves a journey of greater distance for the child to spend time with her mother and also greater expense. He proposes that the child’s time with her mother occur in Adelaide about 650 kilometres from the parties’ current homes and that supervision be carried out by a professional. He also proposes to facilitate the child receiving therapeutic support from an expert therapist who it appears is only available in Adelaide during the same period of the travel for the purpose of spending time with the mother. There are however no appropriate services available for the parties in their home town and neither parent raises these matters as a significant impediment to the time between the mother and child occurring. If the father is permitted to change the child’s residence as he seeks he may move closer to Adelaide to reduce the travel time for the child.
Capacity of each parent and any other person to provide for the child’s needs
Shortcomings in the mother’s capacity to provide for the child’s needs, and in particular the child’s emotional need to have a meaningful relationship with her father free from psychological harm is a salient consideration in these proceedings.
This matter has been a feature of the proceedings from the outset when the father first sought to spend time with the child by initiating proceedings when the child was about three. As highlighted in the submissions of the ICL in particular, very little has changed from that time until the present. The mother appears to have gained no insight into the impact of her own behaviour and beliefs about the father upon the child. No sooner had the allegations she made concerning the father been rejected in the previous proceedings and an assessment made that the child’s best interests were met by living primarily with the father, the mother began once again to document, garner evidence and complain to all who may listen about the father’s conduct. She has continued to create an environment in her household whereby the child has become cued to make complaints about the father and a false narrative about the dangers posed by him is permitted to flourish. The corroding effect upon the child’s relationship with her father has been discussed at length in these Reasons.
The family consultant was concerned about the mother’s allegations which are largely based once again upon the child’s reports and likely to be unreliable and the mother’s failure to attend the assessment and for this reason recommended that she be assessed by a psychiatrist. The mother declined to do so and in these proceedings once again ran a case both critical of the father’s conduct while promoting a parenting arrangement that would require a high degree of cooperation, flexibility, trust and communication between the parties completely unsupported by any evidence. Once again there appears to be a disconnect between the mother’s case and reality and in particular about her insight and parenting capacity.
The mother at times asserted in evidence that the father’s parenting capacity was in some way impaired by pressures associated with his employment or that he had in some way misused his sole parental responsibility and exerted control over herself and the child to the child’s detriment. There was no evidence to support the contention that the father’s capacity to meet the child’s needs was impaired and the mother’s own case must be that he has sufficient capacity to equally share the care of the child with her and jointly exercise parental responsibility.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
The child has received the benefit of positive aspects of both of her parents’ lifestyles. Each of the parents appears to be well engaged in the community in which they live and the child has been involved in a range of enriching co-curricular activities, particular sport and outdoor pursuits. On her paternal side, the child shares close relationships and is involved in many social activities with many extended family members including three half-sisters. It appears that both parents pursue the faith traditions of a Christian church and the child has been educated in a church school.
The father proposes an order permitting him to move to another location in the same geographical area as the parties currently live. Any proposed move does not appear to involve any diminution in the quality of life enjoyed by the child including spending time with her mother in accordance with any of the proposed orders.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
I have no doubt that each of the parents loves the child and wishes to play an important role in her life. They have each demonstrated this throughout the child’s life.
The father has in my view also demonstrated a commendable attitude to the responsibilities of parenthood. At the commencement of the earlier proceedings, he sought only to spend time with the child but ultimately changed his position and orders were made on the basis that it was in the best interests of the child to live primarily with him and for he to exercise sole parental responsibility for her. Since the Recovery Order was made in March 2019 and the orders relating to the mother’s time with the child were varied, he has taken on the significantly increased role of full time care of the child and complied with quite onerous orders for the child’s time with her mother which involve considerable travel and time.
The father impressed the family consultant as being focussed on the child’s psychological wellbeing and observed that he expressed considerable concern about the maladaptive ways the child had learned to navigate between her parents’ households and the negative impact on her if there were further proceedings in relation to her care.
The father now proposes orders that would see him travel a significant distance once a month to take the child to therapy to support her with the change in circumstances that would come about from his proposal and also to ensure that she receives the benefit of spending time with her mother in the best circumstances available in accordance with the family consultant’s recommendation.
The mother promotes orders for equal shared care and equal shared parental responsibility while at the same time maintaining both that the father has physically abused the child in the past but does not pose a risk of future abuse. I am of the view that in doing so the mother has adopted a strategic position in the proceedings to present herself as a cooperative parent, willing to promote the child’s relationship with the father but there are real concerns that she will not do so as soon as the eye of the Court is no longer on her. I consider this as relevant to the mother’s attitude to the responsibilities of parenthood and that it reflects poorly upon her. If parents cannot agree about a child’s future parenting arrangement and they approach the Court for resolution of that matter, it is incumbent upon them that they do so openly and honestly so that the dispute may be resolved in the child’s best interests.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
In my view, having regard to the period of time in which the parents have been in dispute in relation to the child’s arrangements and the impact upon the child of being exposed to that dispute and ongoing assessments, it would be undoubtedly preferable to make an order least likely to lead to the institution of further proceedings in relation to the child.
I am of the view that the orders proposed by the mother are more likely to lead to the institution of further proceedings than the alternate proposals with one exception in that the father does envisage further proceedings as he proposes a mechanism to allow for some review of the mother’s supervision. Given the difficulties associated with long term supervised contact[11] an order in these terms to facilitate the child enjoying unsupervised time with the mother if she has addressed her harmful behaviour is in the child’s best interests. The father’s order proposes that the mother be given leave only to review the requirement for further supervision and does not extend to a general reconsideration of the child’s parenting arrangements and for this reason would not have the same deleterious impact upon the child of such proceedings.
[11] See Moose & Moose [2008] FamCAFC 108; Seaver & Seaver [2015] FamCA 194.
Otherwise the mother’s proposal in my view is more likely to lead to the institution of further proceedings in relation to the child. Having regard to all of the evidence and the mother’s position in the proceedings (that I make a positive finding that the father has abused the child as alleged which is completely at odds with the orders she proposes), I accept the opinion of the family consultant that it is almost inevitable that there will be further proceedings if orders are made as she seeks. The events of February 2019 are a serious example of the consequences of the mother’s conduct in this regard. The child’s complaints which are highly likely to have been influenced by the mother resulted in the father being charged with offences he did not commit, the child being deprived of time with him for six weeks and showing signs of alienation, the child being subject to further assessment, a significant change in the child’s care arrangement and a further final hearing.
There is in my view also a real risk under the ICL’s proposal (which does not provide for any supervision after the child turns 12) that future allegations will be made. Pursuant to the orders proposed by the father, there will be little opportunity for the mother to influence the child about her own concerns regarding the father’s care so the likelihood that further allegations will be made by the child and the proceedings begin again is significantly reduced. This is a very weighty consideration in this matter which favours the orders sought by the father.
Any other fact or circumstance that the court thinks is relevant
The mother seeks an order that both parties be restrained from bringing any further parenting applications without leave of the Court. The father seeks an order in similar terms that the mother only be restrained from bringing a parenting application except for an application to discharge the requirement for her time with the child to be supervised and that such particular application not be brought before January 2023. The family consultant also recommended that the mother be restrained from bringing applications to the Court regarding parenting matters.
As was contended by the mother the authorities are clear as to a court’s obligations in considering an order for indefinite ongoing supervision of time between a child and parent. The Full Court in Gorman & Huffman and Anor [2016] FamCAFC 174 said at [296] – [297]:
It appears that the guideline stems from a premise founded in the “undesirability of, and the practical difficulties associated with, long term supervision in a children’s contact centre” and the impact each and both might have on the welfare of the children concerned (Boland J in Moose, cited with apparent approval in Slater v Light and referring to “Guideline for Family Law Courts and Children’s Contact Services, January 2007 … published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia).
The guideline would appear to contain four components. First, while a failure to limit supervision is not itself an error, the failure to consider a limitation upon it may constitute an error in the exercise in discretion. Second is the necessity to give “cogent” reasons. Thirdly, and in practical effect alternatively, is the apparent necessity for the orders to “allow for some review of the situation in the future”. Fourthly is the need to give reasons reflective of the consideration of those issues.
In the subsequent decision of Betros & Betros [2017] FamCAFC 90, the Full Court considered an order I had made permitting the father to bring a fresh application to lift a supervision order upon the fulfilment of certain conditions but otherwise permanently imposing supervision upon his time with his children. The Full Court determined that adequate reasons were given for the imposition of this order and reiterated at [13]:
It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted (see Slater & Light (2013) 48 Fam LR 573 at 583–584; Champness & Hanson (2009) FLC 93-407 at [209]–[215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]–[41]; B and B (1993) FLC 92-357 at [79,780]). Consideration should usually be given to whether orders can be created to avoid the permanence of the supervision or, if that is not practicable in the circumstances of the case, whether the orders for permanent supervision are instead best made unconditionally, leaving the supervised party to decide if and when he or she might bring fresh proceedings to vary the orders upon proof of changed circumstances, in the manner envisaged by Rice and Asplund (1979) FLC 90-725, as s 65D(2) of the Act ordinarily allows (see Gorman & Huffman and Anor [2016] FamCAFC 174).
The necessity for the child’s time with the mother to be supervised has already been explored in these reasons. The supervision proposed by the father and ICL is consistent with the recommendations of the family consultant who expressed the view that the child’s time with the mother should be supervised at least until the child turns 12 but still had some reservations about time with the mother becoming unsupervised after that age. In particular the family consultant referred to the risk that a child between the age of 13 to 15 may “vote with her feet” and “buy the mother’s narrative” if their time together was unsupervised. As the family consultant suggested that some risk remains to the child in these circumstances I do not consider it proper to provide limitation on the order for supervision.
An order which allows the mother leave to apply to the Court to reconsider the need for ongoing supervision allows for some “review of the situation in the future”.
Given the period of time the parties have been in dispute and the detrimental impact of the dispute upon the child it is proper in my view that both parties be restrained from instituting further proceedings other than for the purpose of reviewing the order for supervision.
Conclusion
I adopt all of the parts of the previous judgment in relation to parental responsibility as follows.
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[12] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[12] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, 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 for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In my view the presumption of equal shared parental responsibility does not apply as I have reasonable grounds to believe that the mother has engaged in abuse of the child. The mother does however seek an order for equal shared parental responsibility so I must consider whether such an order is in the child’s best interests. I must in particular assess the capacity of the parents to make major decisions for the long term care and welfare of the child jointly given that they must make such decisions in this manner if they are given equal shared parental responsibility.
In the previous judgment I found that prior to the child spending regular unsupervised time with the father, the mother unilaterally made all major decisions with respect to the child and did so in my view in an entitled manner without giving any consideration to the father’s role or seeking his views in that decision making. I also noted that even the expert who remained optimistic about the parents’ joint decision making capacity right up to the close of the earlier proceedings accepted that the conditions were not then in place for equal shared parental responsibility to be workable or sustained. I also observed that:
The expert agreed as did the mother under cross examination that if the court were satisfied that the presumption of equal shared parental responsibility were rebutted that sole parental responsibility should be given to the parent with whom the child primarily lives.
I also then concluded that:
Given the lengthy history of the parents’ inability to communicate, jointly make decisions in relation to any matters concerning the wellbeing and welfare of the child and their ongoing conflict until the completion of the final hearing the presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility is rebutted. For this reason I am satisfied that it is in the child’s best interest for the parent who has primary care of the child to hold sole parental responsibility for her.
As indicated earlier in these reasons in my view virtually nothing changed following the June 2017 orders with respect to the parents’ capacity for joint decision making. Although the father holds sole parental responsibility for major long term matters such as health under those orders the mother continued to act in an entitled manner after the orders were made such as through seeking treatment from a chiropractor for the child when the father clearly indicated his opposition to this and also seeking paediatric dental treatment unilaterally. As also indicated, despite evidence about the parties’ capacity for civil communication, they have been unable to reach agreement on virtually any matter since separation.
Further, the extremely low levels of trust between the parents must mean that the cooperative decision making necessary for the exercise of equal shared parental responsibility is untenable.
As I propose adopting the recommendations of the family consultant that the child continue to live primarily with the father and spend limited time with the mother, I also adopt the family consultant’s recommendation which is consistent with all of the evidence that it is in the child’s best interests for the father to have sole parental responsibility for the child.
Having regard to all of the foregoing matters and attaching particular weight to each of the primary considerations, the capacity of each parent to provide for the child’s needs and the importance of making an order least likely to lead to the institution of further proceedings, I am satisfied that most of the orders proposed by the father will best meet the child’s best interests. All of his proposed orders in relation to where the child shall live, parental responsibility and the child’s time with the mother are also in accordance with the family consultant’s recommendations.
There are some other specific orders sought by the father which require discussion. First, it is apparent from the evidence that both of the parents agree that the child’s surname should be hyphenated and contain both the mother and father’s surname but the order that the surnames should appear is in dispute. Considering that the father is the parent with sole parental responsibility and there are no other particular reasons why the order of the surname should be one way or another, I propose making the order that is sought by the father that he be permitted to change the child’s surname in this manner.
The father also seeks an order that he be permitted to obtain a passport for the child and travel overseas with her without the mother’s consent. The holding of sole parental responsibility by one parent does not entitle such parent to obtain a passport for a child without the consent of the other parent. It is proper in the circumstances of this matter and where the father holds sole parental responsibility for the child that an order be made permitting him to obtain a passport and travel overseas without the mother’s consent in order to avoid unnecessary future litigation.
Having regard to the mother’s capacity to influence the child if she has any contact with her outside a supervised environment and given the evidence of the family consultant, it is also proper and appropriate that the various injunctions sought by the father against the mother restraining her contact and communication with the child be made.
Although the father proposed an order in his case outline restraining the parties from varying orders by agreement, no submissions were made by the parties as to this matter. Although an order of this nature was made in June 2017, in circumstances where there is evidence that such an order was not complied with by both parties it is not proper to make this order.
Although the father only sought orders that he be permitted to change the child’s residence to another location in the geographic area where they currently reside, the ICL proposes that the father be permitted to relocate with the child anywhere in the state. Although it may be advantageous for the father to have greater leeway in deciding where the child may live it is he who is seeking the more restrictive order which is in my view proper in all of the circumstances.
The orders that I make are as set out at the forefront of these reasons for Judgment.
I certify that the preceding three hundred and seventeen (317) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 19 June 2020.
Associate:
Date: 19 June 2020
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