Townsend & Zhou
[2022] FedCFamC1F 822
Federal Circuit and Family Court of Australia
(DIVISION 1)
Townsend & Zhou [2022] FedCFamC1F 822
File number(s): MLC 3850 of 2017 Judgment of: JOHNS J Date of judgment: 26 October 2022 Catchwords: FAMILY LAW – CHILDREN – parental responsibility – with whom child lives – with whom child spends time – best interests of the child – where the father seeks an equal time arrangement – where the mother has been the child’s primary carer since birth – where the mother has made unfounded allegations of sexual abuse perpetrated by the father – where the mother has repeatedly questioned the child – where the mother’s behaviour has exposed the child to emotional harm – where the mother chose not to pursue her allegations of sexual abuse – where the mother is a medical professional – where the mother should have sole parental responsibility – where the child’s time with the father should gradually increase toward a shared care arrangement Legislation: Child Support Assessment Act 1989 (Cth)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B(1) and (2), 60CA, 60CC(2) and (3), 61DA, 65DAA, 69ZN, 69ZW, 102NA, Division 12A
Cases cited: Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Division: Division 1 First Instance Number of paragraphs: 187 Date of hearing: 30 May – 1 June 2022 Place: Melbourne Counsel for the Applicant: Self-Represented Litigant Counsel for the Respondent: Mr Chislett Solicitor for the Respondent: Pentana Stanton Lawyers Counsel for the Independent Children's Lawyer: Ms Bonney Solicitor for the Independent Children's Lawyer: Dinning & Co ORDERS
MLC 3850 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TOWNSEND
Applicant
AND: MS ZHOU
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JOHNS J
DATE OF ORDER:
26 October 2022
BY CONSENT IT IS ORDERED
1.That the child X born 2016 ("the child") shall spend time with the father:-
(a)From 5.00pm Christmas Eve until 3.00pm Christmas Day in 2022 and each even-numbered year and from 3.00pm Christmas Day until 5.00pm Boxing Day in 2023 and each odd-numbered year;
(b)On Father's Day weekend from 4.00pm on the Saturday prior to Father's Day until 5.00pm on Sunday;
(c)On the child's birthday:
(i)From 4.00pm until 7.00pm if a school day; and
(ii)From 12noon until 4.00pm if a non-school day.
2.That the child spend time with the mother if the child would not otherwise be with the mother:-
(a)On Mother's Day weekend from 4.00pm on the Saturday prior to Mother's Day until 5.00pm Sunday;
(b)From 5.00pm Christmas Eve until 3.00pm Christmas Day in 2023 and each odd-numbered year thereafter and from 3.00pm on Christmas Day until 5.00pm on Boxing Day in 2022 and each even-numbered year thereafter;
(c)On the child's birthday:
(i)From 4.00pm until 7.00pm if a school day; and
(ii)From 12 noon until 4.00pm if a non-school day.
3.That changeovers shall occur at school and, if on a non-school day, at Location B, City C.
4.That each party shall inform the other of any illness or accident suffered by the child requiring medical attention, provide details of treating health professionals and authorise any treating medical practitioner or other healthcare worker to provide details to the other parent.
5.That both parties shall hereby authorise any school attended by the child to forward to each party, at their respective costs (if any), all correspondence, newsletters, school photographs, information notices and reports generated in relation to the child and shall be permitted to provide a copy of these orders to enable the same.
6.That each party be at liberty to attend activities which parents would normally attend at the child's school.
7.That the parties communicate by text message and/or by an agreed parenting telephone application with such communication limited to child-focussed matters.
8.That each of the parties by themselves and/or their agents be restrained by injunction from:-
(a)Harassing or assaulting the other party;
(b)Denigrating, rebuking or belittling the other party in the presence or hearing of the child and from allowing the child to be in the presence of any other party doing so;
(c)Discussing these proceedings and/or parenting issues to, with or in the presence or hearing of the child and from permitting any other persons to do so;
(d)Exposing the child to family violence.
9.That MS ZHOU and MR TOWNSEND, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X born 2016 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to the order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List until the Court orders its removal.
10.That each party be restrained from changing the child's permanent address from the Sunraysia area without the written consent of the other party or order of this Court.
THE COURT ORDERS THAT:
11.That the mother shall have sole parental responsibility for the child X born 2016.
12.That with respect to the mother’s exercise of sole parental responsibility the following shall apply:
(a)Prior to the making of any education, medical or religious decisions for the child the mother shall:-
(i)Advise the father in writing of the decision intended to be made;
(ii)Seek the father’s written response in relation thereto;
(iii)Consider by reference to the best interests of the child any such response prior to making any such decision; and
(iv)Advise the father in writing a soon as reasonably practicable of her ultimate decision.
13.That the child live with the mother.
14.That until the commencement of Term 1, 2024 the child spend time with the father as follows:-
(a)From the conclusion of school Friday or 3.30pm if a non-school day to the commencement of school Wednesday or 9.00am if a non-school day each alternate weekend, such time to commence upon the next scheduled alternate weekend upon which the child is to be in the father’s care following the pronouncement of these orders;
(b)For one week of each Victorian gazetted school term holiday period at times to be agreed and in default of agreement the first week in even-numbered years and the second week in odd-numbered years;
(c)For one half of each long summer school holiday period:-
(i)Commencing on the day after the child finishes the school year; and
(ii)Finishing on the last Saturday of the vacation period at 5.00pm
and being the first half in 2022 and each alternate year thereafter and the second half in 2023 and each alternate year thereafter.
15.That as and from the commencement of Term 1, 2024 the child live with the mother and the father on a week-about basis, with changeovers to be effected at the conclusion of school each Friday, the child to live with the parent with whom he did not spend time during the last week of the long summer vacation period in week 1 of Term 1, 2024 and each alternate week thereafter.
16.That within 30 days of the date of this order the mother and the father do all such acts and things as may be required to comply with orders 1 and 2 of the orders dated 29 March 2021.
17.That the mother nominate a treating general medical practitioner or clinic of general practitioners within 28 days of the date of this order and thereafter the parties use their best endeavours that, save in medical emergencies, X’s medical needs are provided by that general medical practitioner or general practitioner clinic.
18.That the mother continue to attend upon a qualified psychologist for a period of not less than 12 months to address the mother’s unsubstantiated concerns about sexual abuse of the child by the father, such attendance to be at the mother’s expense.
19.That the mother advise the Independent Children’s Lawyer within 14 days of the date of this order of her preferred psychologist and the Independent Children’s Lawyer is authorised to provide to such psychologist a copy of this Court order, the family reports of Mr D and Ms E and the report prepared pursuant to the s 69ZW order by the Department of Health and Human Services
20.That the father attend upon a psychologist to address the impact on the father of the mother’s allegations that he has sexually abused the child, such counselling to be at the father’s expense.
21.That the father advise the Independent Children’s Lawyer within 14 days of the date of this order of his preferred psychologist and the Independent Children’s Lawyer is authorised to provide to such psychologist a copy of this Court order, the family reports of Mr D and Ms E and the report prepared pursuant to the s 69ZW order by the Department of Health and Human Services.
22.That the mother be restrained from taking the child to any counsellor or domestic violence agency without the prior consent of the father or order of this Court.
23.That the mother and the father each attend such “Tuning Into Kids Program” and Parenting Orders Program as nominated by the Independent Children’s Lawyer and provide evidence of their attendance upon such programs within 14 days of their completion.
24.That upon the expiration of 30 days from the date of these orders the appointment of the Independent Children’s Lawyer be discharged.
25.That all extant applications be otherwise dismissed.
26.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Townsend & Zhou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant father, Mr Townsend, and the respondent mother, Ms Zhou, commenced cohabitation in early 2014 and married one month later. They separated some two years later in February 2016. At the time of their separation, the mother was pregnant with the parties' only child, X, who was born in 2016 and is now aged 6 years.
Although the father was present at the child’s birth, he had no contact with him for the first 12 months of his life.
Since X’s birth, the parties have been in conflict as to his parenting arrangements. That this is so may in part be due to the fact that they have no shared parenting history, having separated prior to his birth; what is clear from the evidence presented at hearing is that there is enormous distrust between them.
Each party has alleged that the other has been a perpetrator of family violence. In early 2017, the mother obtained a final family violence intervention order against the father, with the mother and the child listed as protected persons. Later that year, the mother commenced proceedings in the Federal Circuit Court of Australia (as it then was) seeking permission to travel overseas with the child. That application was opposed by the father, who was fearful that the mother may not return the child to Australia.
Those proceedings were finalised by orders made on 5 December 2018 which provided that the mother have sole parental responsibility for the child. In addition, the following orders were made by consent:-
·The child live with the mother;
·The child spend time with the father on a gradually increasing basis, initially for a period of four hours each Saturday and upon the child starting school, culminating in him spending time with the father each alternate weekend from after school Friday to the commencement of school Monday and for specified periods during school holidays.
Within months of those orders being made, difficulties emerged in relation to their implementation. The father alleges that arrangements for him to spend time with X were routinely cancelled by the mother and by May 2019, some five months after the final orders had been made, reports were made to the Department of Health and Human Services (“DHHS”) (as it then was) that the father had perpetrated family violence against the child. Within a month of that initial report, further allegations were made against the father that he had sexually abused the child.
Throughout the proceedings, the father has denied all allegations that he has been a perpetrator of family violence against the mother or the child, or that he has sexually abused the child.
The mother alleges that the child continued to make disclosures to her of sexual abuse by the father on numerous occasions from 2019 to 2021. Notwithstanding those disclosures, it is the mother's evidence that in 2021, X, who was then aged 4 years, told her that he had been lying to her about his previous disclosures that the father had sexually abused him.
As a consequence, by the time of hearing, the mother did not press her allegation that the father poses an unacceptable risk to the child. It is her case that the child should continue to live with her, that she should have sole parental responsibility and that the child should spend time with the father each alternate weekend from after school Friday to the commencement of school Monday. Although the mother originally sought orders permitting her to relocate with the child to Queensland, she did not press that part of her application at the conclusion of the final hearing.
For his part, the father seeks orders that:-
·The parties have equal shared parental responsibility for the child; and
·The child live with the parties on a week-about basis.
The father's position is that the mother has actively sought to alienate the child from him and thwart the development of their relationship.
The ICL expresses significant concerns as to the mother's conduct in undermining the father's relationship with the child. The orders sought by the ICL are that:-
·The mother have sole parental responsibility for the child, provided that appropriate notice is given to the father of the proposed exercise of that responsibility; and
·The father's time with the child immediately increase to five nights per fortnight and at the commencement of Term 1 in 2024, when X is in Year 2, extend to a week-about arrangement.
These are my reasons for judgment with respect to the parties' competing applications.
BACKGROUND
The father is aged 44 years. He was born in Country F and migrated to Australia when he was aged approximately 32 years. He resides in City C and is engaged in full-time employment as a Supervisor. The father holds a degree which he obtained in Country F and has completed further studies at G University.
The mother is aged 38 years and was born in Country H. She migrated to Australia at age 17 to pursue her tertiary studies at J University. The mother is a medical professional, living and working in City C.
The parties commenced cohabitation and married in 2014. They separated in 2016 when the mother was pregnant with the child.
Approximately two months prior to the child's birth, the mother left City C and moved to Suburb K, Queensland where the child was born.
Approximately two weeks following the child's birth, the mother returned to live in City C.
Although he travelled to Queensland for the child’s birth, the father spent no time with the child following the mother's return to City C.
Proceedings were commenced by the mother in the Federal Circuit Court (as it then was) in January 2018. Initially, interim orders were made for the father to spend supervised time with the child. As noted above, final parenting orders were made on 5 December 2018 which provided for a gradual increase in the father's time with the child.
Following the making of those orders, a series of notifications were made to the DHHS alleging that the father had perpetrated physical and sexual abuse against the child. As a result of the notifications and subsequent investigations of those matters, the father's time with the child has been interrupted.
None of the allegations of sexual abuse in relation to the father have been substantiated by the DHHS. Instead, significant concerns have been raised by both the DHHS and SOCIT with respect to the mothers' conduct, particularly her persistent interrogation and video recording of the child in order to adduce disclosures.
In the s 69ZW response dated 18 August 2020, DHHS workers noted that the mother made video recordings of her questioning X in relation to the alleged disclosures made by him on three separate occasions during 2019. In the first such recording, dated 21 May 2019 at 20:26, the Department reports the following exchange between the mother and X:-
[Mother]Why are you scared of Daddy? Why are you scared of Daddy? Why are you scared of Daddy?
[X] provided no response.
[Mother] Did Daddy hurt you?
[X] Yeah.
[Mother] How many times did Daddy hit you?
On 15 July 2019 at 13:13, the transcript of the video recording made by the mother provides in part:-
[Mother] What are you going to tell the doctor?
[X] Inaudible hit.
[Mother] Daddy hit you, huh? Where?
[X] points to the back of his head.
[Mother] Is [X] scared of Daddy?
[X] Yeah
On 21 October 2019 at 21:40, the mother made a further recording which in part provides:-
[Mother] What kind of stuff you do with daddy?
[X] Tickle daddy
[Mother] Where?
[X] Feet.
Later in the same recording, the Department reports the following exchange:-
[Mother] Do you feel safe or unsafe at daddies [sic]?
[X] Safe.
[Mother]When you say you tickle daddy on the penis and bum bum how does it make you feel?
[X] Sad.
[Mother] If sad you feel unsafe.
During cross-examination by Counsel for the ICL, the mother conceded that she had made the recordings as reported by DHHS. The assessment of DHHS, set out at page 10 of the s 69ZW response, is that the mother has engaged in coaching as well as misattributing sexual content to what is otherwise developmentally normal behaviour of the child. The assessment of the Department provides as follows:-
…[The mother] has historically reported [X] was making humping movements against her crotch, touching her vulva and vagina, occasionally grabbing at her breasts and after laying on [the mother] [X] has played with himself. [The mother] has reported [X] was humping her stomach and trying to put his penis in her bellybutton. [The mother] reports [X] had an erection at the time. [X] was two years old at the time of these reports, a child of his age and stage of development has no concept of sex.
It is the view of the Department of Health and Human Services this report fits the same pattern and history of previous coaching, misattribution, and anxious fixation by [the mother] regarding the care of [X] in the [the father’s] care. It is not likely this will cause significant emotional harm to [X]; however, this is likely to alienate [the father] in the mind of [X] and disrupt the attachment between [X] and [the father] in the long term. Currently the allegations cannot be substantiated while the accusations are seen to be acrimonious.
The protective assessment of the Department at that time was that:-
…given the allegations have the potential to alienate [X] from [the father] over time, due consideration needs to be given to increase contact/care between [X] and [the father] to preserve this relationship.
During 2019, as a result of the interruption to his time, the father filed two applications for contravention of orders. Those applications were dismissed.
In November 2019, the father filed an Application for Final Orders in the Federal Circuit Court (as it then was) seeking orders that he have sole parental responsibility for the child, that the child live with him and spend time with the mother each alternate weekend. By her Response to Application for Final Orders filed in February 2020, the mother opposed that application and sought orders that she be permitted to relocate to the City L, Queensland with the child, that she have liberty to take the child to Country H and that the father’s time with the child be supervised.
On 11 March 2020, Judge Mercuri ordered that the final orders made in December 2018 remain in full force and effect. She also made trial directions and orders for the preparation of a family report. As a result of those orders, the father’s time with the child resumed on an unsupervised basis.
Subsequent to the making of those orders, further reports were made to DHHS alleging that the child had made disclosures of sexually inappropriate behaviour by the father.
In August 2020, orders were made by Judge Mercuri transferring the proceedings to this Court. Further, orders were made for the father’s time with the child to resume and injunctions were made restraining the parents from changing the child’s permanent address from outside the local area.
At the time of the final hearing, in accordance with the final orders, the father was spending time with the child each alternate weekend from after school Friday to the commencement of school Monday.
material relied upon and orders sought
The father relied upon the following material:-
·Outline of Case document filed 25 May 2022;
·Amended Application for Final Orders filed 6 September 2021;
·Affidavit of the father filed 28 January 2022;
·Affidavit in Reply of the father filed 29 March 2022;
·Financial Statement of the father filed 14 February 2022;
·Family Report of Ms E dated 4 May 2022;
·Family Report of Mr D dated 3 August 2020;
·Updated s 69ZW response of Department of Health and Human Services dated 18 August 2020; and
·Document tendered throughout the course of the hearing, being Exhibit F-1.
At the commencement of the hearing the father confirmed that he sought orders in the terms of his Amended Initiating Application. During the course of the hearing, he modified his position with respect to parental responsibility and sought orders that the parties have equal shared parental responsibility for the child.
The mother relied upon the following material:-
·Outline of Case document filed 26 May 2022;
·Minute of proposed orders filed 26 May 2022;
·Response to Application for Final Orders filed 27 August 2020;
·Affidavit of the mother filed 15 March 2022; and
·Family Report of Ms E dated 4 May 2022.
Although the mother filed affidavits of lay-witnesses, Ms M and Ms N, both filed 15 March 2022, she did not rely upon those affidavits at the final hearing.
The mother sought orders in the terms of the Minute of Proposed Orders filed 26 May 2022, albeit that she did not ultimately press her application to relocate to Queensland.
The ICL relied upon the following material:-
·Outline of Case document filed 23 May 2022;
·Affidavit of Dr O filed 28 July 2020;
·Family Report of Mr D dated 3 August 2020;
·Updated s 69ZW response of DHHS dated 18 August 2020;
·Family Report of Ms E dated 4 May 2022; and
·Documents tendered throughout the course of the hearing, being Exhibits ICL-1 and ICL-2.
The orders sought by the ICL were set out in the Minute of Proposed Orders tendered on the final day of hearing (ICL-2).
the issues
Whilst a range of issues were raised by each of the parties in their orders sought, during the course of the hearing agreement was reached by them with respect to the sharing of time with the child on special occasions such as Christmas and his birthday, Mother’s Day and Father’s Day. In addition, there was agreement with respect to the sharing of information regarding illnesses and injury, school reports and the like. It was also agreed between the parties that there should be orders restraining them both from removing X from the Commonwealth of Australia. A Minute of Consent Order with respect to those issues was tendered during the course of the hearing (ICL-1).
I am satisfied that the proposed arrangements with respect to those matters are appropriate and in X’s best interests and I will make orders by consent in the terms of that Minute.
As a result of the resolution of those matters, the only issues in dispute may be summarised as follows:-
·The allocation of parental responsibility; and
·What periods of time the child should spend or live with the father.
legal principles
Section 60B(1) of the Family Law Act1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child's best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order, the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must have regard to in determining what is in a child's best interests. The Court must give greater weight to the need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order or for any of those considerations to be afforded greater weight than others. Ultimately, the weight to be given to each of the considerations will depend upon the unique circumstances of each case.
As to the manner in which the Court is to take those considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at [76]-[77] as follows:-
It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by parliament as those the court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in Original)
There is a presumption that it is in a child’s best interest for parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility, not the time a child is to spend with either parent. For the reasons set out below, I am satisfied that in this case it is not in the child’s best interests for the parents to have equal shared parental responsibility. I am satisfied that the mother ought have sole parental responsibility for making decisions regarding X’s long-term care, welfare and development, subject to conditions requiring her to provide prior notice to the father of such proposed decisions and opportunity for him to provide input into that decision-making.
the hearing
As this is a parenting case, the Court must give effect to the principles enunciated in Division 12A of the Act. Section 69ZN of the Act sets out the principles for conducting child-related proceedings which include:-
…
(3)… that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;
(4)… that the court is to actively direct, control and manage the conduct of the proceedings;
(5) … that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
(6)… that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focussed parenting by the parties; and
(7)… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
The mother was represented by Counsel throughout the final hearing. The father was self-represented, notwithstanding the fact that an order had been made pursuant to s 102NA of the Act which entitled him to seek legal representation through the Commonwealth scheme. As a result of that order, the father was not permitted to cross-examine the mother during the hearing.
Prior to the commencement of the hearing, I informed the parties that in accordance with the provisions of the Act, I must have regard to the best interests of the child as the paramount consideration. Further, I informed the parties that in determining what is in the best interests of the child, I would have regard to the considerations set out in s 60CC of the Act and I drew the parties’ attention to those provisions. Each party was provided with a copy of s 60CC of the Act on the first day of the hearing.
I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each party had to cross-examine witnesses, save for the prohibition against the father personally cross-examining the mother.
Both Counsel for the mother and the ICL were helpful in the conduct of the proceedings. For example, Counsel for the mother agreed to cross-examine the Court Child Expert first; that approach ensured that the father had the opportunity to observe how questions were to be appropriately framed prior to the commencement of his own cross-examination of that witness.
the evidence
Findings are made on the balance of probabilities having regard to the evidence. In applying that standard, the Court must have regard to the nature and subject matter of the case and the gravity of the matters that are alleged (Evidence Act 1995 (Cth), s 140). In what follows, statements of fact constitute findings of fact.
The Father’s Evidence
The father gave evidence on the first and second days of the hearing. He was cross-examined by Counsel for the mother and Counsel for the ICL.
Throughout cross-examination, the father impressed as a forthright and honest witness. From the outset he was at pains to ensure he provided accurate and truthful evidence. For example, when asked to confirm the contents of his Financial Statement, the father informed the Court that there was an error in that document as he had recently received a pay-rise; he gave updating evidence as to his financial position as a result of his salary increase.
During his oral evidence the father was steadfast in his denials that he had been a perpetrator of family violence against either the mother or the child or that he had sexually abused the child.
The father was obviously distressed by the allegations that he had sexually abused the child. At times, the father was tearful when giving evidence in relation to those matters. It was my impression that the father’s evidence in relation to his horror and disbelief at the allegations raised against him was heartfelt and genuine.
It was evident that the father has been deeply affected by those allegations. It was also apparent that the father is fearful that the mother may make further such allegations against him. For example, when questioned as to why he had not permitted the child to call the mother when in his care when requested by the child, the father’s evidence was that it was his time with the child and that he tried to safeguard that space. He conceded that he would permit such calls, provided that in doing so it did not “stir up anything else”, referring to the history of allegations levelled against him. Later in his evidence he stated that he felt that “every week” the mother raises a new allegation, noting that initially she alleged he had physically assaulted her and the child and then made allegations of child sexual abuse.
During cross-examination by Counsel for the ICL, the father confirmed that he did not trust the mother after the allegations made by her and further confirmed it was his view that the mother would use anything to cut him out of the child’s life.
The father maintained that he had moved on from the allegations. His evidence, however, indicates that those allegations continue to influence and affect the way he parents X. For example, the father’s refusal to accede to X’s request to call his mother during time with the father was based upon his fear of further allegations, rather than a consideration of what was in X’s best interests. Similarly, the father was seemingly unaware of the potential harm to X of the refusal of his parents to speak to or acknowledge each other during changeovers. The father’s evidence with respect to those matters was concerning.
The father was cross-examined in relation to the recommendation of the Court Child Expert that he would benefit from individual counselling to support him in his parenting relationship with the mother and to assist him in resolving the past hurt and resentment arising from the parental separation and allegations raised by the mother. The father’s evidence was that it is his view that he does not require such counselling as he relies upon the support of his Minister and other clergy within his church.
The father displayed little awareness as to the benefits of the recommended counselling and strongly resisted the proposition that he would benefit from attending upon a Psychologist. Having regard to his evidence, I am satisfied that the father has little insight as to the depth of his resentment towards the mother as a result of her allegations and further, has little understanding as to the impact of that resentment upon X.
The father confirmed that it was his view that the child would manage well if his time increased from three nights per fortnight to seven nights per fortnight. That confidence was based on his recent experience of spending a week with the child during the past school holiday period; the father confirmed that this was a positive experience for X. I accept that evidence.
During his oral evidence, the father also confirmed that the mother had selected the child’s school and had completed the necessary application forms without reference to him. Notwithstanding the mother’s unilateral action, the father confirmed that he was pleased with the school selected, that the child has made a very positive start to school and that he anticipated that X would remain at that school until the conclusion of Year 10. The father also confirmed that he had attended the child’s first parent-teacher interview and that he anticipated being involved in all events to which parents are invited to attend.
The father also confirmed during his oral evidence that there was no dispute between the parties as to the child’s religion, both parties being committed and active members of their Christian church.
The father confirmed that it is his view that the only major issue that may require the exercise of parental responsibility relates to the child’s health. The father also confirmed that given that the mother is a medical professional, he would listen to any views of the mother in relation to such matters. I accept that evidence.
Although the father demonstrated little insight as to the impact upon him of the mother’s allegations that he is a perpetrator of family violence and sexual abuse, the father otherwise impressed as an open and truthful witness. It was evident and I accept that he is a loving father and committed to parenting the child; he made concessions where appropriate and was child-focussed.
The Mother’s Evidence
The mother gave evidence and was cross-examined on the second day of the hearing. She was cross-examined by Counsel for the ICL. Due to the extant s 102NA order, the father did not cross-examine the mother.
The mother’s evidence was troubling; it was apparent that the mother’s focus with respect to her proposals was based largely on her own needs, rather than those of the child.
For example, the mother’s original position was that it was necessary for her to relocate to the City L to enable her to complete her final examinations to qualify as a medical professional. When questioned in relation to those requirements, the mother conceded that she did not really need to relocate for those examinations and that they could be undertaken in Melbourne.
It was put to the mother that it is a fiction that her proposal to relocate was based on X’s needs. The mother denied that proposition and contended that he would be happier and safer were the relocation permitted. When challenged in relation to those matters, the mother’s evidence was that X is currently not happy. However when pressed, she agreed that X’s school has no concerns for his welfare, nor does Mr P, the psychologist upon whom he had been attending. The mother confirmed that X is not presently seeing a psychologist.
When questioned as to her positon in respect of the sexual abuse allegations, the mother confirmed that she does not rely upon the disclosures allegedly made by the child. When asked whether she believed those disclosures, her evidence was as follows:-
I am choosing to believe what my son is now saying, that he has lied to me but… I don’t understand how a young child at 2 years 11 months how the things he’s saying could be all made up
The mother acknowledged that it was alleged by DHHS that she was causing harm to the child by her persistent questioning of him. She responded that she was “asking directive questions” where there was either a yes or no response available to the child. The mother’s view was that such questioning of X, who was aged three or four at the time of the mother’s questioning, was appropriate.
I found the mother’s evidence in relation to her conduct in questioning the child to be extraordinary. That a medical professional would consider it appropriate to question X in the manner reported by DHHS in the updated s 69ZW Response, and admitted by the mother, is deeply concerning. Notwithstanding her professional qualifications, the mother demonstrated little insight or understanding as to the damage her persistent and leading questions could cause to the child and his relationship with the father.
That conduct is even more confounding given the mother’s admission that she was cautioned by workers from DHHS as early as May 2019 to desist from questioning X as she had in the video recording made by her on 21 May 2019.
At times the mother was a non-responsive or evasive witness when challenged in relation to her conduct. The mother was unwilling to make any concession that her conduct in questioning X and pursuing the allegations that the father was a perpetrator of sexual abuse could be alienating behaviour. She only reluctantly conceded that that conduct could affect X’s relationship with his father.
The mother’s evidence as to the extent of her work commitments was also unimpressive. She was evasive as to the nature and extent of her work commitments.
Equally concerning was the mother’s failure to comply with orders of the court that she file a Financial Statement. The mother’s application to relocate to Queensland was still live at the time she gave her evidence. Pursuant to orders made by me on 25 October 2021, the mother was required to file and serve a Financial Statement by 7 February 2022. The mother did not comply with that order. Accordingly, the Court had no evidence as to her financial capacity to support the spend-time arrangements she proposed in the event of her being permitted to relocate to Queensland.
The mother was cross-examined as to her current income. Again, I found her to be non-responsive and evasive with respect to this issue. The mother was unable or unwilling to inform the Court as to her current income.
As to the costs of her proposals for spend-time, the mother had made no enquiries as to the cost of air travel between City C and City L, nor had she made any enquiries as to the likely cost of rental accommodation in City L. It was the mother’s position that the father ought to pay for the costs of his travel and accommodation to City L for the purpose of spending time with the child. That position was, in my view, indicative of her attitude towards the father’s relationship with the child; the mother was dismissive and unsupportive of the relationship and appeared unwilling to take any active steps to enable or support the relationship.
Based upon her evidence, the mother’s proposal to relocate to Queensland appeared to be little more than an ill thought-out whim. It was my impression that the mother had little regard for the impact of that proposal upon either the child or the father.
The mother’s evidence in relation to the child’s alleged heath issues was also troubling. The mother’s evidence is that the child suffers from a gluten sensitivity. Her evidence as to how she has managed that issue was bizarre, particularly given her qualification as a medical professional. The mother’s evidence is that she caused the child to take a microbiome test using a kit she had obtained online from an American laboratory and which she sent for analysis overseas; it is the result of that test that she relied upon to assert that the child has a gluten sensitivity. The mother agreed that ordinarily children would attend an allergy clinic such as that at a hospital or like facilities in Australia. Notwithstanding that evidence, she has resorted to using a testing kit purchased over the internet to assess whether her own child has such sensitivities.
Given the father’s uncertainty and distrust of the mother’s assertion as to the child’s alleged intolerance, an order was made by consent on 29 March 2021 for the child to have a paediatric assessment. That order provides as follows:-
27.That forthwith the Mother obtain a current referral for the child [X] born […] 2016 ("[X]") to attend up the paediatrician [Mr Q] for the purposes of an assessment of the child limited to a review of the child's alleged gluten intolerance and any other dietary needs and asthma diagnosis and any other respiratory issues with the paediatrician to provide a written assessment to each parent and the Independent Children's Lawyer ("ICL").
The mother conceded during cross-examination that she did not comply with that order. The child has, to date, not had a paediatric assessment in accordance with that order.
I found the mother to be an unimpressive witness; she demonstrated little awareness or insight as to the impact of her behaviour on the child or on his relationship with the father.
Court Child Expert
Pursuant to orders made 25 October 2021, Ms E was appointed as Court Child Expert and prepared a Family Report dated 4 May 2022. Ms E conducted interviews with the mother and the father via Microsoft Teams on 6 April 2022. Further, she interviewed the child via Microsoft Teams on 13 April 2022. She also consulted with the Independent Children’s Lawyer by telephone.
Ms E holds several relevant qualifications and, since 2021, has been a Family Consultant/Court Child Expert for the Federal Circuit and Family Court of Australia. There was no challenge to her professional qualifications.
The Family Report provides a detailed account of Ms E’s interviews with the parties and X. Ms E undertook a considered evaluation and assessment of the parties and the issues in this matter in the Family Report and provides a series of recommendations in its conclusion at [82] to [91]. Those recommendations include that:-
·The child remain living with the mother;
·If the child is to remain living in Victoria, then for him to live with the mother and spend time to increase gradually with the father on alternate weekends with a gradual increase in time;
·Both the mother and the father to attend a Parenting Orders Program to assist them further in developing strategies to help manage their co-parenting relationship and minimise any negative impacts on the child;
·Both parties to attend psychoeducation in relation to the impact of the poor co-parenting relationship on the child;
·Both parties to undertake individual counselling regarding resolving past hurt and resentment from the parental separation and focus on parenting that is primarily focussed on the child’s needs;
·Both parties to attend a “Tuning into Kids” program.
Ms E was cross-examined by all parties. During her oral evidence, Ms E was invited to clarify her recommendations for the father’s time with the child given that the mother:-
·no longer alleges that the father has sexually abused the child; and
·had abandoned her application to relocate to Queensland.
Based on that information, Ms E confirmed during her oral evidence that in her view the father should continue with unsupervised time each alternate weekend and to increase from there. As to how the father’s time ought to increase, Ms E stated that in her view, time should increase and work towards a shared-care arrangement, with there to be a gradual increase over time.
Ms E further expanded upon that recommendation and stated that there should be an increase in the father’s time to five nights per fortnight, and to allow that time to be established until the end of the year. It was her view that this new routine would allow the parties to move towards a more productive co-parenting relationship and thereafter, to have a further increase in the father’s time over the following 12 months towards a shared-care arrangement. Ms E confirmed that for a shared-care arrangement to be optimal for the child, the parents must be able to communicate effectively with one another.
Ms E confirmed her view that in a week-about arrangement, effecting changeovers at school would likely assist the parties, as it would avoid the necessity for in-person contact. Nonetheless she confirmed that there must still be a way for the parties to communicate around day-to-day issues that may arise. She considered that the parties may benefit from using a communication application as an aide to such communication.
When asked as to her position if I were to form the view that there is little prospect of improvement of the mother and father’s communication, Ms E considered that an arrangement whereby the father have significant and substantial care, such as five nights per fortnight, is appropriate.
However, whilst the parties have had poor communication since the child’s birth and have exhibited a high degree of distrust towards each other, which has impacted their capacity to co-parent, Ms E expressed optimism as to their ability to prioritise X’s needs in the future.
Ms E was firm in her view that with the assistance of psychoeducation the parents would be able to communicate effectively in a shared care arrangement. Ms E agreed that given the difficulties the parties have had with communication, it would be preferable to have changeovers of X’s care at school.
As to the allocation of parental responsibility Ms E’s view was that if the parties were to work on improving their communication that would support orders for equal shared parental responsibility. However, if the parties’ communication does not improve, it was her view that sole parental responsibility should fall to the mother provided that appropriate consultation conditions were implemented to include the father.
Ms E was also questioned as to the father’s proposal that there be a cessation in the mother’s time with X whilst she undertakes therapeutic counselling to address what the father considers to be her alienating behaviours. Ms E’s view of that proposal is that it would not be in X’s best interests; she was clear that she did not think that arrangement should occur. It was her view that any interruption in the child’s relationship with the mother would have a negative impact on him, given that she has been X’s primary care-giver since his birth. It was her view that being separated from the mother for a lengthy period of time could affect his attachment relationship with the mother and would interrupt his regular routine, structure, comfort and relationship with the mother. I accept that evidence.
As to the question of whether the child should spend time with the father on a weekly basis or have one block period each fortnight, Ms E was again firm in her view that it would be preferable for X to have block periods with the father each fortnight so as to minimise the number of changeovers between the parties’ households.
I found Ms E Family Report to be thoughtful and detailed. During cross-examination, her evidence was considered. Ms E’s evidence was helpful and cogent and of great assistance to the Court. I accept that evidence in its entirety.
Dr O – Clinical Psychologist
Dr O is a registered Clinical Psychologist. At the request of the ICL, Dr O prepared psychological assessments of both the mother and the father. Those assessments were undertaken by her in May and June 2020 and are annexed to her affidavit filed 28 July 2020.
In her assessment of the father, Dr O observed him to be “a warm, empathic and articulate person, who has not presented with any significant psychopathology or personality disorder.”
Further, in conclusion, Dr O assessed the father as follows:-
…there is no evidence of any likelihood of [the father] perpetrating sexual abuse towards [the child].
There was no challenge to Dr O’s assessment of the father, which I accept.
As to the mother, Dr O observed her to be a "friendly, warm, mildly anxious woman." Again she observed no obvious psychopathology in the mother, other than a level of defensiveness in her responses.
In conclusion, Dr O reported that:-
[The mother] was observed in the assessment to show a disproportionate level of reaction or pathologizing of what would be considered normal range child behaviours for the developmental stage [the child] is at. [The mother] appeared fixed on her belief that any of [the child’s] actions, including taking off his clothes around the house, were ‘evidence’ that he is being sexually abused by [the father].
Overall, Dr O observed the mother to be an anxious but completely protective and loving mother of the child who likely needs support to ensure that she understands that it is not acceptable to denigrate the other parent.
In conclusion, Dr O recommended that both parents undertake not to discredit the other and that the mother undertake psychological therapy to assist her to understand her identity and emotional regulation within interpersonal relationships. Dr O also recommended that the mother be linked with parenting support services to help her understand the child’s behaviour at different age ranges.
Dr O was not required for cross-examination by either the mother or the father and as a result, her evidence is unchallenged. I accept that evidence.
section 60cc considerations
The Primary Considerations: Section 60CC(2)
(f)the benefit to the child of having a meaningful relationship with both of the child's parents;
Ordinarily it is in a child's best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At [26] of that judgment, Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-
[119] … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
…
[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
(Emphasis in Original)
The child has been in the primary care of the mother since his birth. Further, he has an established relationship with the father, with whom he has been spending alternate weekends from Friday after school to Monday morning since the commencement of Term 1, 2022. The evidence of Ms E, which I accept, supports the view that X has a loving and close relationship with both the mother and the father and further, that he will benefit from the continuation of those relationships.
(g)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
It was submitted by Counsel for the ICL, and I accept, that there is a need to protect the child from being exposed to psychological harm in the care of the mother. The submission made, which I accept, is that since the final orders were made in December 2018, the mother has placed a series of roadblocks in the way of the development of a relationship between the child and the father. Those roadblocks included:-
·The mother’s relocation to Queensland prior to the birth of the child;
·Her allegation that she had been a victim of domestic violence at the hands of the father and her application for family violence intervention orders protecting her and the child;
·Her persistent allegations that the child has made disclosures of sexual abuse, which were ultimately abandoned;
·The suggestion that the child suffers from gluten intolerance and that the father is not able to appropriately manage his diet; and
·Her claim that the father is incapable of supporting the child’s attendance to homework and his medical care.
The mother was cross-examined in detail in relation to those allegations, as well as the contents of the DHHS s 69ZW Response dated 18 August 2020. That report sets out a chronology of the notifications made to DHHS with respect to the child. The mother admitted the chronology set out in that document.
The first report to DHHS, following the making of the final orders, occurred on 16 May 2019. The report was made as a result of the mother noticing a small bruise behind X’s ear and a tiny red mark on the back of his head. The mother reported the marks to her GP and also made a report to Victoria Police in City C. No action was taken by the Police.
Significantly, at the time of that report, the father’s time with X had only recently progressed to unsupervised time pursuant to the orders of December 2018; that unsupervised time commenced in late March 2019. The mother confirmed during cross-examination that she had questioned X in relation to his injuries and that she had made a video recording of that questioning. She confirmed during her evidence that following her report to the Police, they took no further action and the case was closed by DHHS at intake.
At pages 8 and 9 of the DHHS s 69ZW Response dated 18 August 2020, there is a transcript of the mother’s video recording of her questioning the child on 21 May 2019. The transcript of that recording notes the mother’s questions to X as follows:-
[Mother]Why are you scared of Daddy? Why are you scared of Daddy? Why are you scared of Daddy?
[X] provided no response.
[Mother] Did Daddy hurt you?
[X] Yeah.
[Mother] How many times did Daddy hit you?
That recording was made some five days after the report to DHHS regarding the injury to X’s head. X was aged 2 years at the time of that video recording. During her oral evidence, the mother admitted subjecting the child to the questioning as contained in the DHHS response.
Some ten days after that recording was made, a further notification was made to DHHS. That notification related to alleged sexual abuse perpetrated against the child by the father. The child was reported to have placed his hand on top of his trousers around his genitals and later attempted to put his hand under the mother’s nightdress. It was also alleged that the father had touched the child on his “pipi” and that the child had touched the father’s “pipi”. At that time, the DHHS response reports that the mother was spoken to by SOCIT detectives who informed her to stop asking the child leading questions.[1] The mother confirmed during cross-examination that that request had been made of her. The file was again closed at intake by DHHS.
[1] DHHS s.69ZW Response dated 18 August 2020, p. 5
Some months later, in late 2019, a further notification was made to DHHS due to concerns for the child’s safety in the father’s care as a result of alleged physical and sexual abuse. Concerns were also expressed as the father’s time with the child was due to increase to fortnightly overnight visits. As a result of the repeated reports, DHHS determined to investigate the matter.
The mother was interviewed by DHHS workers in late 2019 and, during interview, raised concerns as to the child’s sexualised behaviour, which she believed to be indicative of his having been sexually abused; she confirmed that she had questioned the child and attempted to ask open questions, but felt that the child was only able to respond to closed questions.
The child was assessed by a forensic medical officer, Dr R, in late 2019. Dr R is noted to have reported that his examination of the child was unremarkable and that the behaviours reported by the mother were not unusual in a child of X’s age.[2]
[2] DHHS s.69ZW Response dated 18 August 2020, p. 6
During the course of that investigation, the mother provided further video recordings of her questioning the child. During her oral evidence, the mother admitted making those video recordings in which she asked the child what she described as “directive questions”.
As a result of those video recordings by the mother, DHHS and SOCIT expressed increased concern for the child and again cautioned the mother as to the nature of her questioning of him.
During cross-examination, the mother admitted to having been cautioned by DHHS workers regarding her interrogating the child, and confirmed that notwithstanding those cautions, she continued to engage in such questioning.
The Court Child Expert also expressed concern as to the nature of the mother’s questioning of and influence upon the child. For example, at [54] of the Family Report, Ms E noted the child’s response in relation to her question about his time with the father as follows:-
I don’t like it because Daddy doesn’t let me see my grandmother and grandfather for a holiday.
Ms E assessed that response as being out of context to the questions posed and asked the child as to how he knew that. She reported X’s response to that question as follows:-
[X] responded “I just want to see my grandmother and grandfather” and that sometimes [the mother] talks to him about not being able to see his grandparents.[3]
[3] Family Report dated 4 May, 2022, [54].
At [57] of the Family Report, Ms E observed that it appears the child has been influenced or informed by an adult that he and the mother are being prevented from seeing the maternal grandparents by the father. Ms E’s evidence with respect to the child’s statements was not challenged. I accept that evidence.
The evidence contained in the DHHS response as to the mother’s questioning of the child, which is admitted by her, coupled with the evidence of the Court Child Expert as to the child’s statements, satisfies me that the mother has engaged in inappropriate questioning of the child on a regular basis and persisted with such conduct in the face of the warnings she has received from DHHS workers and SOCIT detectives that she desist.
The mother confirmed during cross examination that she has, on several occasions, questioned the child with respect to the allegations that the father has physically and sexually abused him. I am not satisfied having regard to the evidence before the Court that the father has engaged in such conduct and indeed, the mother has abandoned her allegations regarding that conduct.
There is also evidence from the Court Child Expert that the mother has attempted to influence the child’s attitude towards the father such that the child is caught in the midst of the conflict between his parents. For example, at [55] of the Family Report, Ms E notes the child’s statement in response to her query as to whether he has worries whilst spending time with the father. She reports that:-
[X] responded “I don’t like it, because I love my mother”, perhaps indicating that he could not love both of his parents. “I love my Mum”, “I can’t love my Dad too”. [X] did not respond to question “Why can’t you love both your Mum and Dad?”
Again, Ms E was not challenged in relation to her report of the child’s statements or his response to her question. That evidence is most concerning and I am satisfied is indicative of the level of the child’s exposure to the adult dispute whilst in the mother’s care.
Having regard to that evidence, I am well satisfied that there is a need to protect the child from exposure to psychological harm when in the mother’s care.
The Additional Considerations: Section 60CC(3)
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is aged six years. At [57] of the Family Report, Ms E observed that:-
It appears [the child] has been influenced or informed by an adult, that he and [the mother] are allegedly being prevented to see the maternal grandparents by [the father].
Further, Ms E reports her observation that the child appears conflicted, demonstrating confusion at the possibility of having a loving relationship with both the mother and the father. There was no challenge to that evidence, which I accept.
Having regard to the child’s age and maturity as well as the evidence of Ms E, I am satisfied that little weight can attach to any views expressed by the child.
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The child has been in the primary care of the mother since his birth. He shares a loving and close relationship with the mother who has attended to all of his day-to-day needs.
The child’s relationship with the father has been interrupted by virtue of the various allegations made against him since the child’s birth. The father has spent time with the child, initially supervised and now unsupervised, over weekend and holiday periods.
At interview with Ms E, the child confirmed that he enjoys watching television with the father, eating his favourite foods and attending the park. Prior to interview with the Court Child Expert, the child was observed to be comfortable in the father’s care.[4]
[4] Family Report dated 4 May, 2022, [58].
Having regard to that evidence, I accept that the child has a positive and loving relationship with the father.
(c)the extent to which each of the child’s parent has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
The mother has been primarily responsible for the child’s day-to-day care, welfare and development since his birth.
The father has sought to have an active involvement in the child’s life since proceedings first commenced in late 2017. The father’s relationship with the child and capacity to have involvement in his life has been impeded by the numerous allegations levelled against him by the mother that he is a perpetrator of family violence, that he has physically abused the child, that he has sexually abused the child and that he does not have the capacity to meet the child’s needs, particularly with respect to his dietary requirements.
Those various allegations have been investigated by DHHS and have not been substantiated. The mother has now abandoned her allegations that the father is a perpetrator of physical or sexual abuse. Further, the unchallenged evidence of Dr O does not support the mother’s original allegations that the father poses a risk to the child. Having regard to those matters, I am satisfied on the balance of probabilities that those allegations are without foundation.
I am also satisfied that the father has participated in the child’s life to the extent permitted by the mother.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child;
The mother has been primarily responsible for the financial support of the child.
The father pays child support as assessed pursuant to the Child Support Assessment Act 1989 (Cth), currently approximately $169 per week.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Given the mother’s decision to abandon her application to relocate to Queensland, there will be little change to the parties’ day-to-day living arrangements. Both will continue to live in close proximity to each other and to X’s school in the City C area.
The evidence of Ms E, which I accept, is that the child will likely benefit from spending substantial and significant time with the father to enable him to build a meaningful relationship with the father based on positive experiences.[5]
[5] Family Report dated 4 May 2022, [69].
During her oral evidence, Ms E confirmed that in circumstances where the mother does not press her application to move to Queensland, it was her view that the child would benefit from an immediate increase in his time with the father to five nights per fortnight, with that time to continue until the end of the year with a view to increasing it to a shared arrangement over a period of another six to 12 months, provided that the parents are able to communicate effectively with one another. I accept that evidence.
In light of that evidence, I am satisfied that it is appropriate for X to spend increased periods of time with the father which will enable their relationship to further develop and strengthen.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The parties live in close proximity to each other as well as to the child’s school, where it is anticipated he will continue to attend into his senior school years. Accordingly, there is little practical difficulty or expense associated with the child spending time and communicating with both of his parents.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(iii)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother has demonstrated the capacity to care for and meet the child’s day-to-day physical needs throughout his life. However, her persistent interrogation of the child in relation to the father’s conduct in the face of advice and warnings from authorities cautioning against it, supports a finding that she has little insight as to the child’s emotional and psychological needs.
Counsel for the ICL submitted that the mother has demonstrated a proprietorial attitude towards the child, treating him as a possession to which the father is not permitted access. Having regard to the mother’s conduct and the varying allegations made by her against the father over the course of the child’s life, there is much force in that submission.
It was also submitted that the mother has prioritised her own needs above those of the child, particularly in her initial application to relocate to Queensland. The mother’s evidence in support of that application was that she desired to relocate to enable her to complete her examinations as a medical professional and also benefit from the warmer climate. During cross-examination the mother conceded that she does not really need to move to finalise her professional qualifications and indeed those examinations could be completed in Melbourne. Having regard to that evidence, I am satisfied that in making that application, the mother was prioritising her own needs above the need for the child to have a relationship with his father.
It was submitted by Counsel for the ICL that although initially the mother’s case was that the father poses a risk to the child, it is in fact the mother who poses a risk due to her persistent questioning and undermining of the father’s relationship with the child. In light of the mother’s admissions as to her persistent questioning of the child, notwithstanding warnings from the DHHS workers and SOCIT detectives that she desist, I accept that submission.
It was also submitted, and I accept, that many of the allegations raised by the mother with respect to the father’s alleged abuse of the child coincided with periods when the father was due to spend increased time with the child. Based on the timing of those allegations, it was submitted that the mother had endeavoured to manipulate the system so as to thwart the progress and development of the child’s relationship with the father. Having regard to the history of alleged disclosures by the child and the timing of reports to DHHS, there is much force in that submission. I am satisfied that there are significant concerns as to the mother’s capacity to support and promote the child’s relationship with the father.
The father has demonstrated a commitment towards the child and has demonstrated a positive attitude towards the responsibilities of parenthood. The father’s capacity to care for the child has been challenged by the number of allegations made by the mother with respect to his behaviour, in particular the allegations that he has sexually abused the child.
The father was visibly distressed during his oral evidence when questioned as to the impact of those allegations upon him and upon his relationship with the child.
During his oral evidence, the father displayed distrust of the mother which has impacted on his care of the child. For example, during his evidence, the father confirmed that he has not facilitated the child’s telephone calls to the mother during his time as a result of his desire to “safeguard the space” in his home. He admitted that he was fearful that facilitating such calls could stir up further allegations against him. Given the history of allegations raised by the mother, the father’s fears are understandable.
Ms E has recommended that the father attend specific individual counselling to assist him in resolving the past hurt and resentment arising from those allegations. During his evidence, the father indicated a strong resistance to such counselling, it being his position that he receives counsel and support from the Pastor at his church. The father indicated little understanding or insight as to the depth of his distrust of the mother or as to the impact of his attitude towards the mother upon the child. I am satisfied, having regard to the evidence of the Court Child Expert, that the father should attend individual counselling to address his unresolved difficulties as a result of the allegations levelled against him by the mother.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The father was born in Country F and the mother was born in Country H. Each parent has differing cultures and traditions. Both parents seek to share their culture and heritage with the child. I am satisfied that the child’s life will be enriched and enhanced by exposure to the cultures of both of his parents.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
These matters are not relevant to the issues in dispute.
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family -- any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
I have addressed the issues with respect to family violence earlier in the judgment.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;
Parenting proceedings were first commenced in early 2018. Although final orders were made in those proceedings in December 2018, difficulties emerged with respect to their implementation within months of those orders being made. Further, notifications were made to DHHS in relation to allegations as to the father’s conduct towards the child in May 2019. By November 2019, the father had filed a fresh Initiating Application seeking further parenting orders.
As a result of that history, the child has been the subject of either litigation or ongoing investigation by DHHS since he was aged 13 months. I am satisfied, having regard to that history, that the time has come for final orders to be made which will ensure that the child is no longer exposed to litigation.
(m)any other fact or circumstance that the court thinks is relevant.
There are no other relevant facts or circumstances.
conclusion
The first matter to be determined is the question of the allocation of parental responsibility. Both the mother and the ICL seek orders that the mother have sole parental responsibility for the child. The ICL places conditions upon the mother’s exercise of that responsibility, requiring her to inform the father in writing of any proposed decision and consider any response provided by the father prior to such decision being implemented. The father seeks an order that the parties have equal shared parental responsibility.
The evidence of both parties is that the only issue where it is likely that there would need to be an exercise of parental responsibility relates to any health issues for the child. Both parties are practising Christians and are raising the child in that faith. Further, it is common ground between them that the child is settled and happy in his current school where he will be able to continue to attend until the completion of Year 10.
The evidence before the Court supports a finding that at this time the mother and the father have difficulty in communicating cooperatively or effectively to ensure the child’s best interests. As noted earlier, there is significant distrust from the father towards the mother, arising from the series of allegations raised by her against him. Further, the parties have been unable to cooperate or communicate in relation to the child’s health issues. For those reasons, I am satisfied that it would be contrary to X’s best interests were there to be an order for equal shared parental responsibility (s 61DA(4) of the Act).
Given the mother is a medical professional, and the father has conceded her expertise in relation to the child’s medical needs, I am satisfied that she ought to have sole parental responsibility for making decisions regarding X’s long-term care, welfare and development. However, prior to exercising such responsibility, I am satisfied that the mother should inform the father in writing of any proposed decision, seek the father’s written response to such proposal and consider that response prior to implementing any decision. Further, I will make an order requiring the mother to notify the father as soon as reasonably practicable of her ultimate decision.
I am also satisfied that the extant order requiring the child to undertake a paediatric assessment should be complied with. Compliance with that order will provide a baseline of information to both parties as to the child’s likely future needs both with respect to any allergies he suffers and also in relation to management of his asthma. I will also make orders that the mother nominate a General Medical Practitioner to be the provider of X’s medical care and upon whom both parties can attend with him as required.
It is common ground between the parties that the child live with the mother.
As to the issue of the periods during which the child ought to spend time or live with the father, it is the ICL’s position that such time ought immediately increase to five nights per fortnight, each alternate week from after school Friday to the commencement of school Wednesday, together with one half of all school holiday periods. Further, the ICL proposes that at the commencement of the 2024 school year, when X is in Year 2, the father’s time increase to week-about with changeovers to occur on Friday afternoons.
The mother opposes that application. During closing submissions, it was conceded by Counsel for the mother that she would accept a 5/9 arrangement, with the child spending five nights per fortnight with the father.
The father seeks orders for a week-about arrangement with the child.
The evidence of Ms E, which I accept, overwhelmingly supports an increase in the child’s time with the father, initially to five nights per fortnight. It was her view that the child will benefit from the opportunity of spending significant and substantial time with the father, who has much to offer him. That this is so is conceded by the mother.
The issue is therefore a question of whether there should be a further increase in the father’s time with X and if so, when.
The evidence of Ms E during cross-examination was that the parties ought to work towards a shared care arrangement. During cross-examination, Ms E confirmed that an arrangement to increase the father’s time to five nights per fortnight and to allow that time to be established would benefit X, enabling him to adapt to a new routine and structure. She also considered that the increase of time would enable the parents to move into a more productive co-parenting relationship. It was her view that upon the establishment of that routine, there could be a further increase to a shared care arrangement. The qualification Ms E made to that recommendation was that for it to be optimal for the child, it does require the parents to be able to communicate effectively with one another.
Ms E confirmed that a shared care arrangement could be supported by having changeovers at school so as to avoid in-person contact between the parents. She also cautioned that there will still be a need for the parties to be able to communicate around day-to-day issues that may arise. She suggested that communication by a parenting application would assist the parties.
Ms E expressed optimism as to the parties’ capacity to support X and to work towards a shared care arrangement. She stated:-
…I strongly believe these parents are intelligent people; and I guess with the optimism of being able to step back, reflect, first of all, on their own hurt and resentment to be able to have counselling with that after doing a post-parenting program that they can reflect on their own behaviours and the impact – trying to step into [the child’s] shoes about what he sees when his parents are not able to co-parent effectively.
I accept Ms E’s evidence. Both parents are intelligent and both have demonstrated a strong commitment and devotion to their only child.
Having regard to the evidence of Ms E and the parties, I am satisfied that initially the father’s time ought to increase to five nights per fortnight. I accept the recommendations made by Ms E that the parties should each attend for individual counselling and complete a parenting orders program. As identified earlier, I am satisfied that both parties will benefit from counselling support to assist the father in dealing with the allegations raised by the mother, and for the mother’s part, to develop a greater understanding of X’s developmental stages and needs. I will make orders for such counselling to occur. It is to be hoped that both parties embrace those therapeutic interventions to assist them in their co-parenting relationship.
The ICL sought orders that the child also attend counselling. Neither the mother nor the father sought orders in those terms and the Court Child Expert made no recommendation for such counselling. Further, no submissions were made in support of that proposal. Accordingly I will not make that order.
Having regard to the evidence of Ms E as to the benefits to X of a shared care arrangement, coupled with her optimism as to the capacity of both parties to work towards a more cooperative communication and parenting model, I am satisfied that it is appropriate for orders to be made for X to commence week-about time with the parties, commencing Term 1 of 2024. By that time, the parties will have had in excess of a year to engage with counsellors to improve their communication with each other, to address the issues identified by Dr O and Ms E, and to develop routines to enable them to support X in his transition between their homes. I am satisfied that those orders will ensure that X has the opportunity of strong and loving relationships with both of his parents who have much to offer him. Further, those orders will reinforce to both X and the mother the importance and benefit to him of having both parents actively and meaningfully involved and caring for him on a day-to-day basis.
The parties have agreed to a shared holiday arrangement. The commencement of week-about at the conclusion of the long summer holiday period will enable X to seamlessly transition to a shared care arrangement at the commencement of the school year following on from the long holiday period.
I am well satisfied that orders in those terms are in X’s best interests.
I certify that the preceding one hundred and eighty-seven (187) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 26 October 2022
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