TOTHILL & CROWTHER

[2019] FamCA 191

FAMILY COURT OF AUSTRALIA

TOTHILL & CROWTHER [2019] FamCA 191

FAMILY LAW – CHILDREN – Recovery Order – Child to be returned to the care of the father.

APPLICANT: Mr Tothill

RESPONDENT: Ms Crowther

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4475 of 2013

DATE DELIVERED: 29 March 2019

PLACE DELIVERED: Adelaide/Parramatta

PLACE HEARD: Adelaide/Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 27, 28 & 29 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Anderson

SOLICITOR FOR THE APPLICANT: Bartel & Hall

COUNSEL FOR THE RESPONDENT: Ms Pyke

SOLICITOR FOR THE RESPONDENT: Clelands Lawyers Adelaide Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER. Legal Services Commission of South Australia

Orders

1. By consent, the following documents be provided by the independent children's lawyer to the Magistrates Court of South Australian sitting at D Town, marked to the attention of the presiding magistrate in the criminal proceedings against the father:

   (i)Judgment delivered in the final parenting proceedings on 30 June 2017;

   (ii)Judgment delivered today as soon as that is settled and published;

   (iii)Copies of the affidavits filed in these proceedings subsequent to and including 14 February 2019;

   (iv)

   Copies of the section 11F Memorandum in relation to the

   
   

   child-inclusive conference of 27 March 2019;

   (v)In the event that the parties both agree, the documents returned by the Department of Child Protection pursuant to section 69ZW.

2. All of the above named documents are to be placed in a confidential envelope and provided to the magistrate on the basis that that magistrate will entertain argument in that jurisdiction to the use which may be made of the documents.

3. Each of the parties and the Independent Children’s Lawyer is to exchange with one another and provide directly to chambers proposed Minute of Order with respect to the mother’s time with the child and an Outline of Case within seven days. 

4. A date for hearing will be allocated as soon as practicable thereafter by arrangements between my associate and the legal representatives.  

1. Pending further order, pursuant to section 68B of the Family Law Act 1975 (Cth) the mother, shall be and is hereby restrained from:

   a.contacting or approaching or attempting to contact or approach the child in anyway including though a third party.

   b.attending the child’s school.

1. Order 5 is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).

2. I also suspend on an interim basis orders 12 and 13 of orders made 30 June 2017. 

THE COURT NOTES

A. Pursuant to s16 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) an intervention order is invalid to the extent that it is inconsistent with a family law order of the kind referred to in s68R of the Family Law Act 1975. The family law orders in operation with respect to the child B born … 2011 and the parents Mr Tothill and Ms Crowther are parenting orders of the type referred to in s68R of the Family Law Act 1975.  The Intervention Order which restrains the father from having contact with the child is inconsistent with the Family Law Orders and to the extent of that inconsistency is invalid.

B.     Pursuant 68P Family Law Act 1975 if the court makes a parenting order that provides for a child to spend time with a person or a recovery order that authorises a person to spend time with a child that is inconsistent with an existing family violence order (including an intervention order made under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) then a court must specify the inconsistency and give a detailed explanation of how the contact is to take place. These matters are fully explained in the detailed judgment delivered today together with an explanation of the reasons why the parenting orders which are inconsistent with the protection order made yesterday and today are in the best interests of the child.

C.     All matters imposing an obligation on this court to explain the interrelationship with between the family law orders made yesterday and the intervention order are covered in the judgment delivered today.

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 ADELAIDE

FILE NUMBER: ADC 4475 of 2013

Mr Tothill

Applicant

And

Ms Crowther

Respondent

REASONS FOR JUDGMENT

Introduction

1. In June 2017, I made orders, (which will be hereafter referred to as “the final parenting orders”), concerning the future parenting arrangements for the only child of the parties, a little girl who was then aged six.  The final parenting orders aimed to bring an end to a very protracted and acrimonious dispute between the parents that had gone on for most of the child’s life.  Unfortunately, it appears that this has not been achieved because now, only 18 months later, each parent seeks to revisit those orders. 

2. Yesterday, I made a recovery order for the child to be returned to the care of the father and certain other interim orders essentially in the terms sought by the father and adjourned the proceedings until today for the delivery of reasons.  The following are those reasons.

3. The final parenting orders brought about a significant change in the child’s life.  Up until June 2017, she had lived with her mother and spent limited time with her father.  It suffices to observe at this stage that the mother had been extremely reluctant to support the child having a relationship with her father.  The mother raised in those proceedings a range of concerns about the father’s parenting capacity and alleged risks of harm that she maintained he posed to the child.  In my reasons for judgment[1] delivered on 30 June 2017, (“the final parenting judgment”), I rejected the mother’s contentions about the father’s conduct and any risk of harm posed by him and, for the reasons given, found that it was in the best interests of the child to live with the father, who was to hold sole parental responsibility for her and spend defined substantial and significant time with the mother.

   [1]Tothill & Crowther [2017] FamCA 460

4. The mother initially appealed against the final parenting orders through filing of three Notices of Appeal but subsequently discontinued that appeal. 

5. Within a very short time after the final parenting orders were made, the mother began making very similar allegations in relation to the father’s conduct with respect to the child that she had made in the parenting proceedings.  In September 2017, only three months after the orders were made, she attended at a police station and reported an assault on the child by the father.  She made similar complaints to police a few months later in April 2018, shortly after discontinuing her appeal.  The police did not take any action in relation to either of these reports.

6. From at least as early as November 2018, the mother also asked the father to agree to a variation of the final parenting orders.  This conduct is also, effectively, a continuation of the same conduct she had been engaged in from the time the father initiated the proceedings when the child was two and a half. 

7. On 8 February 2019, the mother attended the police station again and informed police of complaints that she says had been made to her the previous day by the child about the father’s conduct.  The police interviewed the child later that day and subsequently sought and obtained an interim intervention order for the protection of the child against the father.  The interim intervention order still allowed the father to spend time with the child in accordance with any order from a Family Law Court.  As such, the child was due to return living with the father after school on 11 February 2019. 

8. On that day, the mother unilaterally retained the child in her care and informed the father through her solicitors, that she would not be returning the child as a result of the allegations and, apparently, advice given by police.  She also communicated with the father by text that day, informing him that she was not sending the child to school.  The mother did not send the child to school from 11 February to 19 February 2019, and she says that this was on the basis that she did not want the father to have an opportunity to pick the child up from school. 

9. The father was interviewed by police on 13 February 2019.  At the interview, he was informed that the child had also made an allegation that in 2016 he had kicked her “up the bottom”.  The father denies all allegations of assaulting the child or acting in an abusive manner at any time. 

10. On 14 February 2019, the father commenced these proceedings seeking a recovery order and suspension of the orders relating to the mother’s time and other associated orders.  The father contends that there is an unacceptable risk that the child will be harmed as a result of psychological abuse in the mother’s care. 

11. The father has subsequently been charged with assaulting the child on two occasions, that is, in January 2019 and September 2017. 

12. The mother, in her Response, seeks orders discharging the final parenting orders and that she be given sole parental responsibility for the child, that the child live with her and spend no time with the father.  The mother contends that there is an unacceptable risk of harm arising from physical abuse in the father’s care.

13. The independent children’s lawyer who was appointed the parenting proceedings and was reappointed in this application supports the position of the father.

14. Each of the parties now, as I’ve indicated, seek to revisit the final parenting orders, and the applications under consideration in part relate to interim arrangements. 

15. The questions for me to determine are whether it’s in the best interests of the child to make a recovery order and the other interim parenting orders sought by the father or whether her best interests would be met by making the interim parenting orders sought by the mother.

Background

1. In order to place the current application in its appropriate context, some background about the parenting proceedings between the parties is necessary.  The following extracts from the final parenting judgment set out some of that context:

   [1]The child is a little girl of six.  Her parents who separated before she was born have been locked in a dispute concerning her future parenting arrangements for half of her life. 

   [2]Prior to commencing spending significant time with him in late 2016, the child had limited opportunity to develop any relationship with her father.  It is his position in these proceedings that the relationship is in jeopardy unless the child lives with him, he has sole parental responsibility for her, that there is a period of time in which she spends no time with her mother and the mother receives psychological support. He proposes then a gradually increasing regime of time between the mother and the child until it reaches three nights on each alternate weekend and for block periods up to one week in school holidays and on special days.    

   [3]The mother contends that the child is doing well under her current parenting arrangement whereby the parents share parental responsibility for the child, the child lives with her and defined time with her father is increasing over time.  She says it would be devastating for the child to change this arrangement.

   [4]The Independent Children’s Lawyer (“the ICL”) supports orders similar to those proposed by the father, except for the proposals for a suspension of the mother’s time.  The ICL agrees with the father’s contention that the child will not have a meaningful relationship with her father unless there is a change in the child’s residence and he holds sole parental responsibility.

   [5]The question for me to determine is which of the proposals in the proceedings are in the best interests of the child B (“the child”).

2. I just digress at this point to note that each of the paragraphs which I’ve referred to from the previous[2] judgment are adopted pursuant to the relevant provision in Division 12A.  I then rely on extracts including 51, which provides:

   [2] These Reasons for Judgment are to be read with this judgment and many findings in it are adopted pursuant to s69ZX(3)(b) of the Family Law Act 1975 (“the Act”)

   [51]Although the mother proposes that the father spend time with the child on weekends and block periods in school holidays including overnight time, she maintained at the hearing that the father poses a risk to the child as a result of his conduct in the past.  She makes very serious allegations as follows:

   ·That the father sexually assaulted her on two occasions and was physically violent to her throughout the relationship.

   ·That the father threatened to kill the child and continues to pose a threat to the child on this basis.

   ·That the father physically and sexually abused his older three daughters and behaved in a sexually inappropriate manner towards the child.

   ·That the father physically and emotionally abused the child.

   The father disputes each of these allegations.

   [111]In summary there is no evidence to support the mother’s claims about the father’s abusive conduct.  The medical records are at odds with her evidence and the complaints were investigated by the Department and not substantiated.  There is no other evidence to suggest that the children have been mistreated in any manner and the father’s former wife also gave evidence of her daughters’ positive interaction with the father and absence of any complaint to her about his conduct. 

   [117]Having regard to all of the foregoing matters, I do not make any positive finding that the father sexually or physically assaulted the mother at any time.  I also am not satisfied that the father threatened to kill the child or made statements from which a threat to do so may reasonably have been inferred, or that he physically and sexually abused his older three daughters or behaved in a sexually inappropriate or abusive manner towards the child. 

   [118]I am also of the view that there is no unacceptable risk of harm to the child posed by the father on the basis that he may abuse or neglect her or expose her to family violence.  Although the detrimental impact upon the child would be great if any such acts occurred, the likelihood they would occur in the future is so low that a finding of unacceptable risk cannot be made. Having regard to all of the foregoing matters, I do not make any positive finding that the father sexually or physically assaulted the mother at any time.  I also am not satisfied that the father threatened to kill the child or made statements from which a threat to do so may reasonably have been inferred, or that he physically and sexually abused his older three daughters or behaved in a sexually inappropriate or abusive manner towards the child. 

   [225]The expert’s view is that the mother’s attitude towards the father’s relationship with the child has not changed over the time in which he prepared the three reports from mid-2014 to March 2017.  For all of the reasons given when considering this issue, I am satisfied that the mother at all times since the commencement of the proceedings has consistently held a negative view about the value to the child of the relationship with the father. For three years she did not facilitate or promote it and attempted to control wherever possible the circumstances in which the child developed a relationship with the father. Even after strong orders were put in place which were more effective in facilitating the relationship I am satisfied that she has not encouraged the development of the child-father relationship at any time.

   [275]The mother contends as I understand it, that there is a need to protect the child from physical or sexual abuse at the hands of the father or neglect in his care.  For the reasons previously given I am not satisfied that the father has abused or neglected the child or other children in his care in the past and there is no unacceptable risk that he will abuse or neglect the child in the future.  Similarly, I am not satisfied that the father’s actions have exposed the child to family violence in the past or that there is there an unacceptable risk that this will occur in the future.

   [306]The mother’s failure to comply with court orders where those orders relate to the development and sustaining of the child’s relationship with the father in my view reflect poorly upon the mother’s attitude toward the responsibilities of parenthood. 

   [312]The mother’s failure to value the father’s role in the child’s life and to resist the establishment and continuation of that relationship which is dealt with at length in this judgment also demonstrates an incapacity on her part to recognise the child’s psychological and emotional need for a meaningful relationship with her father.

   [319] As these have been particularly protracted and acrimonious proceedings and there is expert evidence that the child has been negatively impacted by the conflict between the parties, it would be preferable to make an order that would be least likely to lead to the institution of further proceedings.

   [346]Considering all of the other relevant matters set out in section 60CC and attaching weight for the reasons given to particular considerations including the capacity of each parent, the attitude of each parent to the responsibilities of parenthood and the mother’s unwillingness to encourage the child’s relationship with her father I am satisfied that the suite of orders proposed by the ICL is the best interests of the child and are proper orders to make for the future parenting of the child. In this regard I note that some of the additional specific orders sought by the ICL are in accordance with recommendations of the expert.

3. The mother appealed against the final parenting orders shortly after the orders were made. 

4. In compliance with one of the final parenting orders, the father made arrangements for the child to attend upon a psychologist, which occurred on two occasions in September 2017.  According to a letter from the psychologist to the child’s general practitioner, the child appeared to be “tolerating the change in primary home well”, and the psychologist records that the child spoke about enjoying time with both parents.  The psychologist also expressed the following view:

   As far as I can tell, there appears to be no mood disturbance or any significant behaviours of concern in this delightful, happy child.  The father did not report any behavioural issues, such as bedwetting, school refusal or insomnia. 

5. In the same month, September 2017, the mother reported to police that the child disclosed that the father had “kicked her up the bottom”.  No action was taken by police at the time, and according to the statement of the relevance police officer the complaint was recorded as a civil dispute and made reference to the mother’s unfair treatment by the Family Court.

6. The mother does not depose to any complaints made by the child in relation to this incident at the time or her attendance upon police. 

1. According to the “Facts of Charge” prepared by police, the father currently faces a charge of assaulting the child on 13 September 2017 by “kicking her up the bottom, causing severe bruising to her inner thighs”.  There is no evidence to suggest that any medical attention was sought for the child at this time. 

2. Various steps were taken in the mother’s appeals against the final parenting orders but by 5 March 2018 the mother had discontinued those appeals.  Her discontinuance was noted in orders of the Court of 5 March 2018 in relation to costs in the proceedings. 

3. The following month, April 2018, the mother again attended the police station and requested that police investigate allegations of abuse said to have been committed by the father against the child.  The statement of the police officer records that the mother “was told nothing would be investigated in the absence of substantive offences”.  The mother does not depose to any incident at about this time. 

4. At some stage, the parties began discussing between themselves the possibility of agreement concerning variation of the final parenting orders.  The father deposes that the mother had sought to change the final parenting orders ever since they were made and that he had engaged in conversations with her about this.  The mother deposes that the father contacted her on 19 November 2018 requesting changes to the existing Court orders. 

   On 14 January 2019 there was a text message exchange between the parties in which it appears to be suggested by the mother that the parents care for the child in a week-on/week-off equal time arrangement, that all restraints contained in the orders be removed, and that the parties be able to change the orders between themselves in writing.  The mother added “I have missed out on so much with [the child] and I want a meaningful relationship with her”.  The father deposes that he had not agreed to any of the changes sought by the mother, and had no intention of varying the orders other than by application to the court. 

5. On the weekend of 26 and 27 January 2019 the father deposes that when the child was with him she spent time with her half-sisters.  These older children reported to the father that when they were playing on a metal bunk in the child’s bedroom the child bumped her head.  The father says he consoled the child and provided her with a bag of frozen peas to put on her head.  He says that the following day when he took the child to get a haircut before school started the child proudly told the hairdresser about the lump on the back of her head, and the hairdresser commented that she could feel it.  The father says that the child described the lump happily, and showed no signs of distress and did not mention it again. 

6. Later on the same day, 29 January 2019, the father deposes that the child was misbehaving when wrapping a present, and that he became frustrated with her as she wasn’t listening to him or concentrating on the task.  He says that the child also became upset and frustrated.  He deposes to asking the child to go to her bedroom where she stayed for 10 to 15 minutes.  She then came out of her bedroom and finished the task without further issues.

7. Two days later the child spent time with the mother overnight in accordance with the final parenting orders.  The mother deposes to the child complaining about the father being mean, and telling her about the incident which the child reported occurred the previous night when she was wrapping the present and got into trouble.  The mother also deposes that during the drive home the child complained that her legs and back hurt when she slept and that she could not feel her legs.  The mother did not seek medical attention but instead contacted a chiropractor.

8. The mother notes that the child already had an appointment with the chiropractor booked for the following week, “as a result of a fall she had in the school holidays” though she adduces no other evidence about this fall.  The mother deposes that later that afternoon, 29 January, she noticed a large bruise on the child’s leg below her right knee which looked swollen, and although she asked the child how it happened, the child did not provide any explanation.  The mother did not seek any medical attention in relation to the bruise either.

9. The following week the child lived with the father.  During that period the child spent time with various members of the extended paternal family, including the father’s ex-wife and his partner.  She also attended school and various other co-curricular activities and had dinner with other adults and children in the father and child’s social circle. 

10. On 7 February 2019 the mother collected the child from school for the commencement of the four days together in accordance with the final parenting orders.  The mother deposes to taking the child to the chiropractor for an appointment after school, and that the child told the chiropractor that her leg hurt, and pointed to where it was sore, which the mother says is the same place where she had previously seen the bruise.  The chiropractor apparently identified a problem with the child’s right leg.  The mother deposes to asking the child about this “injury” during the car journey home, and how it may have occurred, and says that the child reported to her that “it happened when dad got angry at me last week.  He picked me up and took me to my room, and threw me at my bunk bed”.  The mother deposes that the child reported that “I hit the wall with the back of my head, and my neck, and my legs hit the rails".  She also deposes that she asked the child why she had not reported this the previous week and the child said she had been too scared to report it as the father told her she could not tell anyone or he would be really, really angry. 

11. The following morning after delivering the child to school the mother attended at the local police station and reported to a police officer what she says the child had reported to her.  The mother also deposes that she told the police officer that she was very reluctant to make this report as she had been criticised in the previous court judgment.  The mother did, however, provide police with an affidavit setting out the child’s complaint the previous evening, and disclosing the assault on 30 January 2019.  That affidavit is not in evidence before me. 

12. I also do not have before me a transcript of the child’s interview or, as noted, the mother’s affidavit which was read by police prior to the interview.  A document prepared by police described as a “brief summary of interview” is as follows:

    [The child] disclosed a physical assault with occurred a week and a half ago where [the father] threw her onto the top bunk of a set of bunkbeds using excessive force.  He did this by pulling her backwards by the scruff of her neck, grabbing the top of her pj’s around the back of the neck and got hold of an arm and a leg and threw her onto the bed.  There was so much forced used, she banged the back of her head on the wall and her legs banged on the bed frame which is described as being made out of metal. 

    The victim disclosed a further assault which is alleged to have occurred in 2018 [sic] where [the father] kicked her up the bottom and caused severe bruising.  She said he walked past her and did this for no reason.  When turned to look at him, she said she was crying and that he walked off pretending he hadn’t done it.  She said she had bruise on her bottom as a result.

    She went on to describe lots of verbal abuse and stated that she is in fear of [the father] and believes he will kill her.  She said this several times during the interview but could not say she believed this other than stating that he is mean and yells at her everyday making her fear for her life.  She was asked if she talks to her mother about these feelings but she stated that she does not as her mother knows she doesn’t like to talk about it. 

    She says he hurts her body but other than the two assaults stated nil further disclosures on how else he hurts her.

    During the interview she said she does not ever want to go back to [the father’s] house.

    She was teary during the interview and acted out to show police how [the father] assaulted her.

13. On 15 February 2019 the father’s solicitor wrote to the mother’s solicitor advising that as the interim intervention order is expressed to be subject to any order made under the Family Law Act, and noting that the mother was currently in breach of a number of those orders the father “demanded” that the mother deliver the child to school that day, and advised that the father would arrange for a family member to collect the child at the end of the school day. The lawyers were also advised of the father’s application and sought instructions from them to accept service. The police then revoked the interim intervention order, and issued a further order which did not contain the exception to the terms allowing for contact to occur between the child and the father under family law orders.

14. It appears that police, the parties and possibly even the lawyers seemed to consider that the intervention order in its amended form operated to override the family law orders. 

The Applications

1. It is the mother’s case that it would be untenable for the child to return to live in the care of the father while he is the subject of criminal proceedings, as the child is the alleged victim.  She contends that the father did assault the child as alleged, and that there is an unacceptable risk that the child may be harmed as a result of physical abuse perpetrated by him in the future.  In this regard she contends that the child’s version of events given to her, and to police when interviewed, about the incident in which the father threw her on the bunk bed in late January 2019 are correct.  It can also be assumed that she believes that the child gave an accurate and honest account to police about an incident in September (it appears it’s said to be September 2017), where it’s alleged that the father kicked the child in the buttocks so severely that she sustained extensive bruising.  In other words the entirety of the mother’s concern depends upon the account of the child, who is the subject of these proceedings, being accepted as accurate.  She puts forward no other evidence such as from a medical practitioner in relation to the alleged injuries suffered by the child on either occasion. 

2. The mother also makes no other complaints in her affidavit about any other ill-treatment by the father towards the child, or other matters that give rise to an alleged risk of harm in his household, other than risks associated with the integrity of the criminal process to which I will return.

3. It is the father’s case that the mother poses an unacceptable risk of psychological harm to the child arising from subjecting the child to emotional abuse, and from the mother’s inability to comply with the final parenting orders.  He contends that the psychological abuse of the child arises from the mother withholding the child from him for seven weeks, manipulating the child to make the false allegations against him, and withholding the child from school for a week, in breach of the final parenting orders.  It is his case that the child is already showing signs of being seriously aligned with the mother and rejecting him, and that it would be untenable for the child to continue to be subjected to this abuse for any longer.  It is his case that if it were to continue there is a real risk that the child’s relationship with him will be damaged beyond repair.  His concerns depend upon a court finding that the mother does pose an unacceptable risk of psychological harm to the child on this basis.

Discussion of competing contentions

1. There is clear authority that when considering interim orders a court cannot make findings of fact.  A court must identify the competing proposals and issues in dispute on the basis of the agreed or contested facts.  This does not mean that the court cannot have some regard to the matters in dispute and in this application the matters in dispute are of central concern. 

2. In SS & AH[3]the Full Court said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue

   [3] [2010] FamCAFC 13

3. In George & George[4] the Full Court citing Deiter & Deiter[5] (“Deiter”)made it clear that the court cannot ignore concerns that are raised in the material before it is just because matters are in dispute between the parties.

   [4] [2013] FamCAFC 182

   [5] [2011] FamCAFC 82

4. In Deiter (supra) the court made it absolutely clear that a risk assessment must be made when considering matters of risk that are raised in the Application.  At [61] the Full Court said:

   Risk assessment comprises two elements-the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of impact caused by those events.  In our view the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested and the last submission is made.  We accept however that it is always a question of degree depending on the evidence that is before the court.

5. Considering the second of these elements first, there can be no doubt that if it were proved that the father had assaulted the child on the two occasions as alleged this would have a severe detrimental impact upon the child.  The absence of a positive finding that the father had physically harmed the child in any of the various ways as alleged by the mother in the parenting proceedings, and the finding that he did not pose any unacceptable risk of harm to the child on any basis was central to the final parenting orders, and my determination that it was in the best interests of the child for her to live with him and for him to have sole parental responsibility for her.

6. So far as the risk of harm to the child allegedly posed by the mother is concerned, in my view there can equally be no doubt that if it were proved that the mother has been manipulating the child and failing to comply with the court orders with a view to damaging the child’s relationship with her father as alleged, this would also have a severe detrimental impact upon the child.  The finding made in the parenting proceedings that the mother’s failure to comply with court orders which relate to the development and sustaining of the child’s relationship with the father (which, in my view, demonstrated the mother’s poor attitude to the responsibilities of parenthood), and her failure to have held her older daughter in check, and allowing that daughter to be an unhelpful influence in the background, reinforcing fears and denigrating ideas about the father in the child’s mind, also demonstrated an incapacity in the mother to provide for the child’s needs and reflected poorly on her attitude as a responsible parent.  These matters, together with the mother’s devaluing of the child’s close and continuing relationship with the father and her unwillingness to facilitate and encourage that relationship for many years were all central matters in my determination that it was in the best interests of the child for the mother to be excluded from holding any parental responsibility for her, and that the child be moved from living with her to living with the father.

7. The first of the two elements of risk identified in Deiter in this case are an assessment of the likelihood that the father will assault the child and has assaulted the child, and an assessment of the likelihood that the mother has caused and will cause psychological harm to the child. 

8. The first matter to consider in assessing the likelihood that the child was assaulted as alleged is the likely accuracy of the child’s evidence.  In the mother’s Outline of Case the question of the child’s account is approached as if the only alternatives relate to honesty rather than accuracy.  That is whether the child has lied, or whether the child has been manipulated by the mother into making the allegations.  The father approaches the matter in a similar manner and is particularly concerned with the likelihood of manipulation by the mother which he also puts forward as relevant to the question of emotional harm that he contends the child may experience if orders are not made as he seeks. 

9. While both these possibilities will be considered, in my view an analysis and assessment of the child’s evidence is more complex, particularly as the child’s allegations about the father have been at the centre of the ongoing dispute between her parents, about her parenting arrangements over many years.

10. While the extent and nature of this conflict, and the impact upon the child may not be immediately apparent, in my view, the conflict has effectively continued ever since the father commenced proceedings in November 2013 and has not been brought to an end with the making of the final parenting orders. 

11. I say this for the following reasons.  The mother appealed against the final parenting orders and maintained that appeal until March 2018.  The mother has also continued to allege that the father is a perpetrator of abuse.  She first complained to police about the father’s conduct towards the child in September 2017, then April 2018, in January and February 2019.  Further, since at least November 2018 and possibly earlier, the mother has attempted to have the father agree to change the orders and as recently as two weeks prior to the January allegation complained that she did not have a meaningful relationship with the child under the current arrangements.

12. Both parents now have applications to revisit the parenting orders.  The family consultant in her Memorandum reflecting her interview with the parents yesterday also noted “the parties in this dispute are not amicable”.  There is a lengthy history of dispute between the parties. This context and the impact on the child, including the way in which she manages to negotiate her parents’ dispute cannot be ignored, and is in my view absolutely central to understanding the child’s complaints to the mother and disclosures to the police upon which the allegations of abuse entirely rest.

13. It is apparent from the final parenting judgment that there is a well-documented history of the child complaining about the father’s conduct to a range of people, a number of whom are experts, and have expressed an opinion in relation to the matter.  The child is first observed to have behaved in this manner after the release of the expert’s first report in October 2014 in which recommendations were made that the child be reintroduced to the father with the assistance of a therapist.  In relation to the therapist’s evidence concerning one of those contact events I set out the following in the judgment at paragraph [151]. 

    [151]The therapist reports that on the third event when arriving at the playground where time with the father was to occur the child told the therapist that she did not want to play with her but then immediately thereafter engaged in a positive and energetic interaction with her.  The child behaved in a similar manner as soon as she saw her father using the same words and tone of voice but when the father displayed a calm response the child immediately began positively interacting and playing with him.  The therapist was of the opinion that the child’s statement that she did not want to play with the therapist and father were not genuine expressions of her own wishes.  She felt that these sort of inconsistent statements often indicate that a child has been subjected to negative scripting by a parent who is in conflict with the other parent. 

1. In paragraph [157] of the judgment I set out my reasons for attaching weight to the therapist’s opinion.

2. The next occasion on which an expert expressed concern about the content of the child’s conversation and negative narrative concerning the father occurred when the expert appointed to provide an opinion in the proceedings interviewed the child for the second time, in September 2016, when the child was aged five and a half.  In the final parenting judgment I referred in the following terms to this interview at paragraphs [201] and [202].

   [201].The expert records the following with respect to his interview of the child who was aged five years and seven months at the time:

   [The child] was mildly apprehensive about being alone with me for interview, but was noticeably more comfortable about this prospect than at the last assessment (she could not remember being in this place). As soon as we settled into chatting, [the child] spontaneously said ‘me and mum been talking all night. [We] have to talk about what I go to say. I always forget’. When asked what she had to say, [the child] said ‘he’s a sad man, he tries to get me. He scares me and is making me [be] here. [Mr Tothill] is trying to take me; it’s really scary. He doesn’t have a heart’. She then said ‘he doesn’t want to tell him’ but it was unclear what she meant by this.

   [The child] then continued, without prompt, saying that: he scares me so much when the special police came. He’s got girls; they’re not my sisters. Everything is bad in his family’.

   When asked how she felt about seeing [the father] if I was there too to make sure she was comfortable, [the child] said ‘when you’re there he’ll be nice. When no one’s [here] he’ll be mean and hurt me and throw me across the walls. We have to have visits’.

   [The child] then continued: ‘he yells at mum “you put [the child] down”. I’m not calling [Mr Tothill] dad ‘cause he’s not my dad. I don’t like him and I don’t want to see him. The Federal Police said they were going to bang the door down. Mum has to keep me away from school ‘cause [Mr Tothill], he really hates my school’. When asked what mum thinks of [the father], [the child] said ‘she thinks he’s mean’.

   [The child] then spoke briefly about someone called [Mr L] and waterskiing before noting that ‘if I smile [with the father], he’ll take you away. Mum said I would take you away. [Mr Tothill] kicks [O]’. When asked who told her this, [the child] said ‘she told me’. When asked if she meant mum, she nodded affirmatively. [The child] then continued by saying ‘he’s a mean person; he hurts everyone. He’s trying to put poison in chocolate to take me away’. 

   [202].The expert also observed the child with her father in the presence of the mother. He described the child initially not facing the father but gradually at the gentle instigation of the father easing down into a seat next to her mother and beginning an exchange of eye contact and simple gestures with the father, ultimately settling into a board game. The expert observed that the child looked occasionally to the mother for cues about how to respond to the father. By the time the observation had completed the expert said the child had become noticeably more immersed, comfortable and unselfconscious about interacting with the father and showed no signs of distress.

3. At paragraph [204] of the final parenting judgment I set out extracts from the expert’s summary and opinion which included the following. 

   [204]…The child’s interview disclosed a disturbing willingness on the part of the mother to draw the child into her position even on the night before the assessment, effectively undermining any trust or goodwill the child may be able to develop in relation to the father. Despite the indications by the child that the mother had encouraged her to say a string of clearly-rehearsed negative statements about the father, [the child] became remarkably comfortable over time with the father during the subsequent period of observed interaction. I am thus inclined to believe that, should handovers actually take place, and the mother were no longer present, [the child] would adapt remarkably quickly to spending time with the father.

4. These matters are particularly relevant to the issue of the likely accuracy or otherwise of the child’s version of events. 

5. This concerning situation arose during the period of time that the father had spent more extended time, including overnight time, with the child between October 2016 and March 2017 when the hearing was completed.  It is recorded in my final parenting judgment that each of the parties filed a further affidavit at the commencement of the March 2017 proceedings, "with voluminous detail concerning each of the occasions the child spent time with the father during the interim period"[6].  In relation to the child's complaints made to other people, the following is recorded in the final parenting judgment:

   [6] Tothill & Crowther [2017] FamCA 460 [219]

   [227]Records produced on subpoena by the school counsellor record that the mother met with the counsellor at the mother’s request expressing her concern about the child’s “access visits as she feels [the child] hates them”. The records indicate that the counsellor spoke to the child the following day and records [that the child]:

   started to talk about her dad which she calls [Mr Tothill] and said that he is going to pick her up today and she doesn’t like him. She said that she sometimes has to spend time with him and he doesn’t make her happy. She did say that he sometimes makes her laugh and sometimes they do fun things. (as written)

   It is also recorded that the child commented “her dad wants to be her dad and she doesn’t want him to”.

   [228]The records of the school counsellor indicate that on an occasion in November 2016 the child’s class teacher asked her to see the child. The counsellor’s records on that day include the following:

   [the child] wanted to see me this morning., She also wanted me to go into the office this afternoon and tell [the father] that she doesn’t want to spend any time with him. She called him a “bad man”. When I questioned her about why he was a bad man she said he was bad because he didn’t like her mum and if she spent time with him then she wouldn’t see her mum anymore.

   The counsellor also recorded that the child commented “he wasn’t her dad”.

   [229]The counsellor’s records of a further discussion with the child on 8 December 2016 include the following:

   [the child said] straightaway that she is going home with [the father] after school … she then told me that she doesn’t like going with him because he gets her dressed … he gets her out of her uniform and puts other clothes on her. She said that she doesn’t like that. Then she said that he “gets me dressed and takes photos of me and sends it to his friends”. I asked if he takes photos of her when she is getting dressed, is dressed, or when she has clothes on. She says he takes photos when she is getting dressed. I asked her what he takes a photo with. She then said that “I don’t see him take the photos, mum tells me he does, she saw the photos. Mum said that the only way to stop going with [the father] is if I tell you that.”

   [230]The school records also include a document made by the child’s class teacher on 20 November 2016 in relation to a conversation she had with the child on that day. The record indicates that the child made similar complaints to the class teacher as those she had made to the counsellor including the following:

   She went on to say “I have to tell you I don’t want to go with him. I’ve told you that before” … I told [the child] that it wasn’t me making her go with [her father] and that my job is just to make sure she gets to the office safely to meet him. She then said “but if I keep going happily the teachers will think that I want to go with him.” I asked her who told her that and she replied “my mum”.  

   [231]The records made by the school teacher include similar remarks made by the child on other occasions in November and December 2016.

   [232]Overall the tenor of the mother’s records of the occasions the child spent time with her father is that the child complained that she was required to spend time with the father and that she did not enjoy the time and did not want to go with him.  It is clear from the mother’s records that she encouraged the child to tell her teacher and her counsellor about her feelings concerning the matter. 

   [233]I am satisfied that each of the parents accurately give evidence of the child’s comments when in each parent’s respective care.  That is, I am satisfied that the child informed the father from time to time that he was “a bad man” and wanted to “take her away” that her mother had told her various negative things about him as he reports and that she was not permitted to tell her mother that she enjoyed her time with him.  I am also satisfied that the child was encouraged by the mother to make similar complaints about the father and not wishing to spend time with him to her class teacher, another teacher and school counsellor. 

6. In relation to the role the mother has played in encouraging the child to complain to various people, I made the following findings in the final parenting judgment recorded at paragraph [240]:

   [240]Having regard to the records of the child’s school including records made by the child’s class teacher, another teacher and the school counsellor which were ultimately confirmed by the mother herself, I am satisfied that the mother did experience difficulties with many aspects of the orders which promoted the further development of the child’s relationship with her father.  The mother agreed that she did have “a little bit” of difficulty complying with the order about not being near the vicinity of the father when he was spending time with the child and that the reason that she arranged for the child to see the counsellor was partly so that she could obtain evidence of the child complaining about the father’s abusive conduct and reluctance to spend time with her father.  I accept the submissions made on behalf of the ICL that the mother was attempting to establish proof of her own views that the child was not enjoying her time with the father and was not safe with the father in an effort to reduce the father’s time with the child.

7. I accepted the submissions made on behalf of the ICL that the mother was attempting to establish proof of her own views that the child was not enjoying her time with the father and was not safe with the father in an effort to reduce the father's time with the child. 

8. The expert prepared a further updating report on the final day of the hearing concerning his observations of each parent's interaction with the child.  He had also been provided with the affidavits filed by the parties in March 2017 for the purposes of the resumed hearing.  At paragraph [250] of my final parenting judgment, I set out extracts from the expert’s third report which include the following:

   …the parties have [word deleted] managed to find ways of creating and maintaining confusion, tension and distress for the child when she has had to move back and forth between the parents…[the child] herself has been the main loser in recent months, displaying signs to all concerned of chronic confusion, emotional tension and some distress (including the need to lie or monitor what she and other say) over how she can manage the complex terrain of her parents dispute.  I fear that the mother’s teenage daughter has been an unhelpful influence in the background reinforcing fears and denigrating ideas about the father in the child’s mind. 

9. My findings about the negative views expressed by the child in the few months immediately prior to the final hearing are recorded at paragraph [281] as follows:

   Similarly, the very negative views about the father which continue to be expressed by the child to various people right up until the completion of the hearing are not reflective, in my view, of the child's genuine feelings about the father with whom she now shares a well-developed relationship.  As observed earlier, I attach significant weight to the opinion of the expert.

10. I attached significant weight to the opinion of the expert in the final parenting proceedings, and of particular relevance to this application, his opinion that both parents were responsible for, "managing to find ways of creating and maintaining confusion, tension and distress for the child".  This had led to the difficulties for the child in managing the complex terrain of her parents' dispute which included the need to lie or monitor what she says to others.  I also referred to the expert's opinion about the inadequacy in the mother in not holding the older daughter in check during the adjourned period.

11. The expert also opined, as is recorded at paragraph [305] in the parenting judgment

    [305]…if the mother has not been able to correct these, that is fears and denigrating ideas about the father, and/or reinforce value and normality of spending time with dad, then it is not surprising that the child has had to develop sophisticated methods for managing the mutually exclusive perceived expectations and preferences of the parties. 

    I also said the following in relation to the expert's concerns about the child's inability to enjoy a relationship with the father in the mother's household at paragraph [328]:

    [328]The expert remained concerned that in the mother’s household the child had the impression that it was not acceptable to have a relationship with the father and it appeared that there was a new factor in play as the mother’s older child was continuing the negative narrative about the father and the mother had failed to control this narrative.

    [329]The expert also remained concerned about the unhealthy strategies the child had developed to date to manage having a relationship with her father while living in the mother’s household. The expert was firm in his view that the premise of the mother’s final proposal that the father is a good father and the child deserves to have a good relationship with him and a substantial amount of time is “exactly the premise that she’s not acknowledging by her behaviour or verbally in the entire proceedings…” He described the child’s robust presentation and development of a relationship with her father as a “marvel” which occurred “despite the odds” but did not agree that this was a good reason for the continuing conditions to remain in place. He felt that the child has had to achieve that robustness and develop her relationship with her father at too high an emotional price that would continue if that parenting arrangement were also to continue.

    [330]I accept the opinion of the expert that even though the child’s relationship developed significantly in the six months preceding the second part of the final trial, the circumstances in that time had been problematic and distressing for the child. The child had developed maladapted responses to her situation and a continuation of it would come at a high emotional cost for the child. For this reason, and on the basis of the conduct of the mother over the three years preceding the commencement of the final trial, I am not satisfied that she is willing to encourage a close and continuing relationship between the child and her father and this is a weighty factor in my determination of this parenting dispute.

12. In summary, the child in these proceedings has developed maladapted responses to the situation of conflict between her parents.  In particular, she developed unhealthy strategies to manage having a relationship with her father while living in the mother’s household.  For the reasons given, I am of the view that the conflict between the parties has not abated and it is highly likely that the child has continued to respond in a maladapted and unhealthy manner, including by making complaints about the father’s conduct in order to manage living in the mother’s household.  The expert specifically referred to one of the child’s strategies in this regard being that she tells lies.  The expert also referred to other negative influences in the mother’s household, such as the mother’s older child. 

13. In addition, and a matter to which I attach weight, is that the child adopted an entirely negative narrative about the father and his household when spoken to by a family consultant yesterday and told demonstrative lies about some matters, such as that she had not lived with her father or mostly lived with him and that at her father’s home, he gives her no food and no water.  Further, the child’s complaints about the father’s conduct have taken on a bizarre and fantastic quality, such as that the father let her go into the scrub with snakes and forced her to go into the water and told her there were great white sharks.  Further, one of the negative matters related by the child began with the words “I need to tell you this”, which is remarkably similar to the complaints that the expert described as having a rehearsed quality when given to him by the child in the course of the proceedings.  There were other indications that I interpret as the child clearly understanding the conflict between her parents and having an awareness of some of the details of it, such as her stating that the father lies to others to get the mother in trouble, which is a suggestion which is completely consistent with what the mother told the family consultant yesterday.

14. Taking into account all of the foregoing matters and in particular the context of the parental dispute and the way in which the child has adapted to manage it, that the dispute is still ongoing and that it may be considered that the child’s maladapted responses have intensified, I approach the accuracy of the child’s account with great caution. 

15. Other matters that I consider weighty in determining whether it’s likely that the father assaulted the child on the two occasions as alleged include the following: 

    ·That only three months prior to the first alleged assault, after consideration of detailed evidence from many sources, I formed the view that there was no unacceptable risk that the child may be harmed by being physically abused in the father’s care;

    ·That at almost exactly the time of the alleged September 2017 incident, the child was seen by a psychologist and found to be managing with the change of residence well and demonstrating no concerning signs;

    ·That the mother gives no account in her affidavit of the child making any complaint to her in September 2017;

    ·That the police took no action in relation to the mother’s complaints to them about the father’s conduct in September 2017 and assessed that complaint as being associated with the mother having been unfairly treated by the court;

    ·That there is a complete absence of any reference in the mother’s affidavit to observing extensive and serious bruising on the child’s thighs or buttocks in September 2017 and the absence of any evidence that she sought medical treatment for the child at the time;

    ·The unlikelihood that if the child suffered severe bruising, as alleged, in September 2017, that some other mandatory notifier did not observe the same and report the matter to the Department of Child Protection;

    ·The unlikelihood that the mother would have continued to make the child available to the father if the child had suffered extensive bruising while in the father’s care which the mother inevitably must have seen, if it existed;

    ·The unlikelihood that the mother would continue to negotiate civilly with the father over changing the parenting orders and envisage maintaining his shared care for the child if the child had made allegations along these lines and she had observed the bruising;

    ·The absence from the mother’s affidavit or her having further concerns about the father assaulting the child in April 2018, which was also referred to police;

    ·The unlikelihood that the mother would have discontinued her appeal against the final orders if she had ongoing concerns about the father’s abusive conduct which is suggested by ongoing complaints to police;

    ·The failure to raise with the father the child’s complaints about his conduct at the time in either September 2017, April 2018 or January 2019, when she seemingly had an amicable relationship with him and was attempting to negotiate about changes in the child’s parenting arrangements;

    ·The mother’s failure to seek appropriate medical attention for the child on 29 January 2019, when the child had complained about sore legs and back and she observed a large bruise and swelling on the child’s leg;

    ·The absence of any corroborative evidence about the swollen and bruised leg;

    ·The likelihood that the child’s complaints about the father’s conduct in throwing her on a bed due to his anger and frustration with her is a conflated and exaggerated version of two incidents which the father readily admits occurred, but which are benign;

    ·The likelihood that the child would have been seriously injured if she had been picked up and thrown against a metal bunk, as she alleged to the mother;

    ·The absence of any medical evidence about the child’s alleged injury said to have been identified by the chiropractor on 7 February 2019;

    ·The remarkable similarity between the allegations made by the mother on numerous occasions in the parenting proceedings when the father is alleged to have thrown the child or other children and the similarities between the child’s fear that the father will kill her and the mother’s evidence that she held similar fears at various times during the child’s life;

    ·The incident in relation to the bunk bed is also strikingly similar to a specific allegation made in the final parenting proceedings recorded at paragraph 59 of the parenting judgment;

    ·The manner in which the current allegations emerged and the timing of them against the background of my findings in the final parenting proceedings recorded at paragraph [182] of the judgment that:

    [182]I am satisfied that the mother made these allegations for the strategic purpose of raising concerns about the father in order limit the development of the child’s relationship with him.

1. The mother’s counsel places considerable weight in her outline of submissions on the fact that the father has been charged with criminal offences in relation to the same conduct that forms the basis of the mother’s concern about the likelihood that the father will physically abuse the child. 

2. I am not of the view that the assessment of police to charge the father is a weighty factor in these proceedings.  Of particular importance is that the police officer with carriage of the criminal charges says in relation to the interview with the child that it was clear at the beginning of the interview the child knew the difference between telling the truth and telling lies.  It is not clear why the officer forms this view and for the reasons given above, the child’s complex presentation and maladaptive responses to her personal circumstances, including telling lies, is not a matter that could simply be resolved by a police officer through asking standard questions.  Further, the officer appears to have attached some weight in the decision to prosecute the father on an affidavit provided by the mother, (which is not before the court in these proceedings) of the child’s complaints of pain in her legs and the disclosure of the assault on 30 January and alleging the father had assaulted her in September 2017.  These allegations made by the mother are, as noted, markedly similar to allegations that she made in the parenting proceedings which were tested under cross-examination over many days, the subject of expert opinion and considered in a 64-page judgment.  In my view, if all of these matters are considered by the prosecuting police or magistrate if the criminal proceedings do indeed go to hearing, the prospects of a successful conviction are low.

3. Although, on the face of it, it may seem a concerning situation that the child is to live with a parent against whom serious allegations are made, the likelihood of a successful prosecution must be considered. 

4. Having regard to all of the foregoing matters, I am of the view that the likelihood of the father having assaulted the child alleged is so low that he does not pose an unacceptable risk of harm to the child on this basis.

5. I now turn to consider whether the mother poses an unacceptable risk of psychological harm to the child.  Although the written submissions on behalf of the father characterise the psychological harm posed by the mother as arising from her inability to comply with court orders and her manipulation of the child, the evidence of the family consultant about her observations of the child yesterday put a slightly different complexion on the matter.  The family consultant said the main concern she had about the child’s presentation arose from the child’s inability to nominate a single positive thing about her father, as this presentation can be consistent with a child becoming alienated from a parent.  The family consultant explained that in situations where a child is rejecting a parent, it would be expected that child would have a clear narrative of events to cause her to feel this way, but this child was unable to provide that and instead gave example of the father’s “meanness” which had a fantastic quality and, as noted, everything she had to say about her father was completely negative.  Although the family consultant said there were glimpses of a child who was quite comfortable with the father in her informal observations of the two together, the child was generally reluctant to be around him and the family consultant was concerned that the process of alienation may be commencing. 

6. The question of whether the mother had undermined and failed to promote the child’s relationship with the father was a matter of central and critical importance in the final parenting proceedings.  I formed the view that the child had greater prospects of having a meaningful relationship with both parents if she were to live primarily with the father and spend substantial and significant time with the mother.  Although I did find that the child had developed a meaningful relationship with the father by the time the parenting hearing was complete, this had occurred despite the mother’s unwillingness to support that relationship.  I rejected the mother’s position that the relationship between the child and father had developed in part in response to her attitude towards the relationship and promotion of it.  I accepted the expert’s opinion that the development of the child’s relationship had been achieved because of the more effective structure that had been put in place through interim orders, rather than a change in the mother’s attitude.  At paragraph [254], I recorded the expert’s firm opinion that he had not seen any fundamental change in the mother’s attitude or the climate the parents had created and I was satisfied that the mother had at no time encouraged the development of the child-father relationship. 

7. At the end of the proceedings, the expert was very concerned that although the child’s relationship with the father had developed and significantly improved, the circumstances in which that had occurred in which the child remained living primarily with the mother had come at a high emotional cost for the child.

8. In my view, particularly in light of the child’s presentation to the family consultant yesterday, the impact of the child returning to live with her mother runs the risk of having, again, a high emotional cost for the child.  I am concerned that there is a real risk that if the child were to continue to live with the mother – and particularly if she was to spend no time with the father, as the mother proposes – that the cost for the child will be a destruction of her relationship with the father.  Similarly, if she were to return to the father’s care and continue to spend time with her mother in accordance with the final parenting orders, there is a risk that she will develop further maladaptive responses, including the complete rejection of her father in order to maintain her relationship with her mother.

9. When the hearing was complete in March 2017, although the child had developed maladaptive responses and the emotional toll upon her had been high in circumstances where she was living with the mother, it was hoped that through a change of residence, the situation may resolve for the child and she could enjoy a normal and healthy relationship with both parents.  However, there are signs that the child has developed more serious maladaptive responses in the rejection of her father which is now evident.  In these circumstances, I am of the view that there is an unacceptable risk that she will suffer further emotional harm through these circumstances if she either lives with her mother and spends no time with her father or continues to spend substantial and significant time with her mother pursuant to the final parenting orders.

Recovery order - considerations

1. The order sought by the father and made yesterday returning the child to the father’s care was a recovery order within the definition of section 67Q of the Family Law Act 1975.  That order was made exercising the power under 67U, which provides that a court may, subject to 67V, make such recovery order as it thinks proper.  67V provides that in deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.  Section 60CC sets out the matters that must be considered when determining a child’s best interests.  Section 68P is also a relevant matter to consider to which I will return.

Best interests considerations

1. The primary considerations which are contained in section 60CC(2) are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  Section 60CC(2)(a) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm and to the benefit to the child of having a meaningful relationship with both parents. 

2. Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[7] 

   [7] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

3. The important consideration of the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence goes to the heart of this application and has been dealt with at length.

4. Although I have not made any definitive findings at this stage in relation to the competing contentions of the parties, for the reasons given, I consider that it is more likely that a risk of psychological harm to which the child may be subjected will arise in the care of the mother on her proposal than if the child is returned to live with the father, as he seeks in the recovery order. 

5. I also made an order yesterday suspending the mother’s time with the child and restraining the mother from making contact with the child or attempting to do so through a third party.  I will come to my reasons for that injunction shortly, but I observe that this disruption of the child’s relationship with her mother is for a period at this stage which is unknown.

6. This suspension will not, in my view, have the effect of denying the child the benefit of a meaningful relationship with her mother as the concept of a meaningful relationship is qualitative, rather than quantitative.  Returning the child to the father’s care does not of itself deny the child the benefit of the important relationship she shares with her mother.

7. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied to this case and I will refer to those which are relevant.  The child has expressed her views concerning this application and her parenting arrangements to the ICL in their brief meeting yesterday and to a family consultant who interviewed the child and made observations of her when she was brought to Child Dispute Services yesterday.  The child expressed an entirely negative view about the father and firmly stated that she did not wish to live with him or have anything to do with him.

8. In my view, there is a real risk that the child’s expression of views is not genuine for all of the reasons discussed earlier at length.  As she is once again caught in the middle of the parental conflict and, given her age and the circumstances in which her views were expressed and have been unable to be further explored or assessed, I attach little weight to them.

9. The nature of the child’s relationship with her parents, until recent times, is as set out in the final parenting judgment.  In that judgment I expressed the view that there is no doubt that the child has a close attachment relationship with her mother, who had been her principal carer throughout her life until mid-2017 and that it could be assumed that the child also shared important relationships with her half-sister (the mother’s older daughter) and maternal grandparents.

10. By the time the final parenting proceedings were completed the expert was not challenged on his opinion, which I accepted, and I found that the child by then had a meaningful relationship with her father and important relationships with her other half-sisters on the paternal side.

11. In this regard I note that the family consultant’s view is that, the child speaking positively about her relationship with her half-sisters, tends to suggest to the family consultant that at this point in time her relationship with her paternal and maternal half-sisters has not been corrupted by these protracted proceedings.

12. There is nothing to suggest that the nature of the child’s relationship has changed until very recently.  In the view of the family consultant it is concerning, though she could not put it any higher than that, that the child is now showing signs of being alienated or strongly aligned to the mother and rejecting the father.  I am currently unable to express any further view about this matter.  In my view, at this stage however, it appears more likely that the child is expressing views that do not truly reflect the nature of her relationship with her father, and it can be assumed that the strength of that relationship has survived over the difficulties of the last two months, when the child has had no contact with the father.

13. The most salient of the additional matters I am required to consider is the likely effect of any change in the child’s circumstances.  In my view the most serious change of circumstances that this child has experienced in the last few months, has arisen through the unilateral acts of the mother.  The child has been returned to live in the mother’s household on a full-time basis and has had no contact at all with the father, who has been her primary carer – who had been her primary carer for the previous 18 months, following the final proceedings.

14. It is highly likely, in my view, that the child experienced this change in her arrangements and separation from her father and paternal family as confusing and distressing, regardless of how she may be expressing her views.  The confusion and difficulty for the child, in my view, is likely to have been compounded by interviews with police and being withheld from school, which is, to the family consultant, a comfortable and happy place for the child, and then subsequently being involved once again in her parents’ dispute through attendances at Child Dispute Services and the like.

15. The return of the child to her previous circumstances of living with her father, in my view is likely to bring about some stability for the child.  It must be recognised, however, that it is also likely that it will be awkward and also confusing for the child to be living with her father in circumstances where it appears she understands that he is in trouble with the police as a result of her complaints about him.

16. However, it is unlikely, in my view, that the child understands the nature of the criminal process.  Further, if, as I have considered likely, her complaints about the father’s abusive conduct, including to police, is not a reflection of her lived experience she will not experience the level of dissonance that, as a matter of logic she must have experienced in the mother’s household where she retained positive memories of her father, while at the same time apparently feeling a need to express views of a different kind.

17. At this stage I am giving reasons with respect to the recovery order and ancillary and related orders only, and the mother’s time with the child has only been suspended on an interim basis – a short-term interim basis.  So the issue of the impact upon the child of separation from her mother is not immediately under consideration, and will be explored at length when the issue of the mother’s time is considered in due course.

18. Another salient feature in these proceedings is the attitude of the parents, and in particular the attitude of the mother to the responsibilities of parenthood.  In this regard it is submitted on behalf of the mother, that she should not be criticised for acting in accordance with the advice of police in withholding the child following the child’s complaint to police and issuing of an intervention order, and also for failing to initiate proceedings to suspend or vary the final parenting orders. 

19. In this regard I attach weight to the fact that the mother has been embroiled in these proceedings for many, many years.  In the course of these proceedings a recovery order has been issued on at least one occasion, the mother was brought to court by police, and the child was exposed to that experience.  The mother has failed to comply with a range of orders, and in my view it can be inferred that she well understood the consequences of failing to comply with court orders.

20. I cannot accept that the mother would rely upon police to provide her effectively with legal advice, when it is clear that, at about the same time the Intervention Order was issued she had also engaged lawyers and had been informed by the father’s solicitor’s letter to her lawyers, that the family law orders were still operative and that she ought to comply with them.

21. As I said earlier, it is an intriguing aspect of these proceedings that all of the parties seemed to accept either the police interpretation of the laws the Intervention Act – intervention order provisions, and the Family Law Act, rather than satisfy themselves that, at all times the family law orders have been in place. In my view the mother retaining the child at a time when she had legal advice, and claiming that she acted upon the advice of police, does reflect poorly on her the responsibilities of parenthood and her capacity.

22. For the foregoing reasons I made the orders in relation to the recovery order. 

68B Restraint

1. I also need to return to the issue of the 68B restraint, which was opposed by the mother, and the terms of it in restraining the mother from having any contact with the child whatsoever went beyond what was sought by the father. 

2. In my view, in the circumstances of the case, it is highly likely that the mother may be in a heightened state of emotional dysregulation and is likely to have felt distressed about the circumstances in which the child was returned to the father’s care.  Further, given some of the struggles which she admitted in the previous proceedings in complying with all of the orders in their entirety, and in particular staying away from the school, also given the extremely confusing situation that the child is in, and the impact upon her if the mother were to expose her to an emotionally dysregulated state, and also in circumstances where there has been a history of disobedience by the mother of court orders, particularly that relate to the child’s relationship with the father, it appeared to me to be appropriate and necessary for the protection of the child to make the order in those terms.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 March 2019.

Associate: 

Date:  1 April 2019