Tran and Ferguson and Anor

FAMILY COURT OF AUSTRALIA

TRAN & FERGUSON AND ANOR

[2011] FamCA 552

FAMILY LAW - CHILDREN - With whom a child lives – With whom a child spends time - Best interests of a child – Family violence – Whether child at risk in the care of either parent - Allegations initially made by the mother that the child was being sexually abused by the father - Independent Children’s Lawyer

Family Law Act 1975 (Cth)

APPLICANT:

Ms Tran

RESPONDENT:

Mr Ferguson

INTERVENER:

Director-General, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Slade Manwaring

FILE NUMBER:

SYC

643

2008

DATE DELIVERED:

15 July 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

11, 12 , 13 and 14 April 2011 and written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Di Lizio

SOLICITOR FOR THE RESPONDENT:

Ms Hale

COUNSEL FOR THE INTERVENER:

Mr Anderson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Messner

Orders

Subject to these orders and up until 21 December 2011 the Minister for Community Services have sole parental responsibility for the child

N (“the child”) born … October 2004.
During the period in Order 1 the child is to reside with her current foster parents, B and P, other than when she spends time with her mother or her father.
If during that period in Order 1 the foster placement for the child with the foster parents breaks down such that the child is no longer able to reside with them then the child is to reside with the mother.
During the period in Order 1 the child is to spend the time with each of her parents as follows:
(a)with her mother from after school Friday to before school Monday for the first, second and third weekends in a four week cycle
(b)with her mother from the first day of the school holidays in September/October 2011 to the day before school goes back
(c)with her father from 10.00 am to 4.00 pm on Saturday on the weekend that the child is not with the mother as arranged between the foster parents and the Minister or Minister’s delegate and the father.
The mother is forthwith to enrol in or seek assistance from the following programmes:
(a)an Anger Management course recommended by the Minister or his delegate
(b)a parenting course as recommended by the Minister or his delegate
(c)“[Program 1]”, and the Minister or his delegate is requested to assist the mother in availing the services of this programme
(d)a course designed to assist persons who have been the victim of domestic violence as recommended by the Minister or his delegate.
Upon enrolling in the above programmes the mother is to attend as required by the programme organiser until the completion of the programme, or until she is advised that she is no longer required to attend.
From 21 December 2011 the mother have sole parental responsibility for the child.
From 21 December 2011 the child is to reside with the mother.
From 21 December 2011 the child is to spend time with her father each alternate Saturday from 9.00 am to 5.00 pm.
To facilitate the father’s time with the child changeover is to occur at Contact Centre 1 if available, or if unavailable at Location 1 nearest to the mother’s residence with the mother to deliver the child to the father at that place at the time stipulated and the father to return the child to the mother at that place at the time stipulated.
The father’s time with the child may be suspended for up to a four-week period in any year to enable the mother to holiday with the child, provided that she gives the father at least four weeks' written notice of her intention to have such a holiday.
The father is restrained from consuming alcohol for twelve hours prior to his spending time with the child and during any period that the child is in his care.
Both parties are restrained from denigrating the other to the child, within her presence or within her hearing.
The parties are to keep each other advised of their current residential address and postal address, and contact telephone number to be used only in the event of an emergency.
Unless otherwise agreed all communication between the parties is to be in writing except in the case of an emergency.
The father may send gifts or cards by post to the child at any reasonable time.
The mother will ensure that any gifts, cards or letters sent to the child from the father or from her extended paternal family are given to the child.
The mother authorise the child’s school to forward directly to the father copies of the child’s school reports and any other information in relation to the child’s progress at school.
The mother advise the father as soon as practicable of any serious health issues in respect of the child.
The mother and the father are restrained from attending with the child any business premises involved with the sex industry for any reason whatsoever.
After 21 December 2011 the child may spend time with the foster parents,

B and P, (if the said foster parents so request) on a daytime basis, (unless otherwise agreed to between the mother and the foster parents), provided that such time is not more frequent than once each fortnight and does not conflict with the time spent with the father.
The Minister or his delegate is requested to provide assistance to the foster parents and/or to the mother to facilitate any requests to spend time with the child pursuant to Order 21 above.
Pursuant to Section 65DA(2) and Section 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.

IT IS NOTED that publication of this judgment under the pseudonym Tran & Ferguson and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 643 of 2008

Ms Tran

Applicant

And

Mr Ferguson

Respondent

And

Director-General, Department of Family and Community Services

Intervener

And

Slade Manwaring

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

Before the Court are proceedings between parents with respect to the parenting of their daughter N (“the child”), born in October 2004, now

6 years of age.
The mother is an Asian immigrant who is still learning English and who has had a difficult history since coming to Australia, a history in which violence has been part of her life. That violence has included violence perpetrated by, and on her. It has included one stabbing death of a former partner or boyfriend for which she was convicted of manslaughter, and imprisoned.
The mother is the owner of an adult entertainment industry business which she managed for some time. It is now under lease to another person.
The mother is proposing that the child reside with her, that she have sole parental responsibility and that the child spend some time with the father. The mother has difficulties with English, although she is undertaking courses to improve her English skills. She communicates otherwise with the child in Asian Language 1 or 2 which the child speaks as well as English. Although she makes the proposal that the child spend time with the father, she readily concedes that she wants absolutely nothing to do with the father and that she can no longer tolerate him.
The father is a man who has a history of some violence and criminal behaviour associated with alcohol consumption. Despite medical advice that he should cease drinking alcohol he frankly tells the Court that he does not intend to do so. He says that he is now a socially responsible drinker and has obtained employment in the transport industry, in which occupation he is the subject of random alcohol and drug testing. He says, however, that the nature of his employment is such that he is, despite the terms of his initial application, now proposing that the child reside with the mother and spend time with him. He acknowledges that communication between the mother and the father has been difficult, but he says he is prepared to try and communicate with the mother.
Each of the mother and the father has or has had clear parenting deficits outlined by the expert evidence and the history of their lives both together and apart. The expert offers that there are risks for the child in the care of either of the parents for the future. The expert’s evidence however, has been the subject of effective attack in cross-examination and the Court is left in some areas with evidence of little weight given its crumbling nature.
The alternative placement is with the Director-General of The Department of Family and Community Services, a State department responsible for the welfare of children, and through him with a foster family. This is also a less than ideal solution for this child who knows, has a bond with and seeks the company of each of her mother and father. She has, however, since the commencement of this litigation remained primarily (other than on occasions of respite care and being in the supervised presence of one or other of her parents) in the same foster home where she has been placed, and the Department has said that the foster parents have asked if the child can, for the long term, remain part of their household. In that household there are children of the foster parents and other children placed there from time to time.
Respite is offered to the foster parents by weekend placement of the foster child once per month if requested or longer if required. Sometimes the offer is not availed of.
The Department has proposed that such respite placement be with an Asian Language 1 or 2 speaking family to enable the child to retain her facility with that language. For this child, in a period since February 2010, there have been 27 or 28 days of such respite placements.
The Department proposes that the child spend limited time with either of the parents and that such time be supervised. A major concern with such arrangement is the fear held by the Department that the foster placement might successfully be undermined by the attitude and conduct of either or both of the parents, leaving the child to her detriment in a climate of continuing instability.
The Court has no doubt that, despite their problems, each of the parents loves their daughter in their own way and that their daughter reciprocates that love. There is no doubt that the relationship between the parents is almost

non-existent. Indeed, while the mother in evidence said that she proposed that the father have contact with her daughter, it seemed only by reason of the fact that she believed that Australian law required her to do so. The mother’s anxiety for her child in her father’s care will be an additional concern for the welfare of the child were that time to be spent by the child with the father.
Where for this child is a safe refuge to be found; one in which she will be free from the past violence associated with her parents and the legal but, for a young female child, undesirable influence of the mother’s business, but also free to love them and not resent her foster parents and their children for whom she has also developed affection. The arrangements which will provide that safe physical and emotional environment for this child is what the Court is asked to seek. It is like finding a pathway from an intersection of three roads all of which are beset with danger.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1954 the mother was born in Asia and is now aged 57 years.
In 1956 the father was born in Europe and is now aged 54 years.
In 1966 the father entered Australia at the age of 10 and his family settled in Adelaide.
Between 1975 and 1982 the father came under notice of the courts and police on a number of occasions. He was placed on a bond for assault. He was convicted of disorderly behaviour and being drunk. He was convicted of driving with excess blood alcohol on three separate occasions and exceed speed offences. His punishment ranged from fines to imprisonment.
In 1982 the father was charged with common assault and placed on a bond.
In 1988 the father was charged with common assault and in 1988 he was convicted of failing to stop after an accident. He has other convictions which led to him being disqualified from driving for a period of 12 months and fined on a number of occasions.
In 1995 the father was disqualified from holding a firearms licence following an incident in which he was said to have threatened his wife. He says that at that time he was depressed and was taking anti-depressant medication.
On 10 July 1990 the mother arrived in Australia as a refugee.
In 1992 the mother became an Australia citizen.
In 1992 the mother was convicted of Manslaughter (on a plea of guilty) and received a 3 year sentence with a non parole period of 22 months.
In 1994 after the mother was released from jail, she moved to Adelaide.
In 1997 the mother was charged with a crime relating to the adult entertainment industry in South Australia and fined.
In 1998 the mother was charged with a crime relating to the adult entertainment industry but the matter did not proceed to a conviction.
In 1998 the mother was charged and fined $50 for a crime relating to the adult entertainment industry.
In late 1999 the parents commenced a relationship in South Australia.
In February 2000 the parties participated in a wedding ceremony however they were not legally married.
In early 2000 the mother alleges that the father assaulted her, that he drank to excess and gambled, and on one occasion, punched her in the face during an argument. The father denied the allegations.
The mother reported the incident to police and, to the best of her recollection, the father was found not guilty of an assault and the mother decided to move to Sydney.
The mother alleged that the father, who was remorseful, asked to move with her to Sydney and she agreed to this.
At Easter in 2000 the mother and father moved to Sydney and the father commenced work in the security industry.
In 2001 or early 2002 the mother obtained a licence to operate an adult entertainment industry business in Sydney and commenced working there as the owner/manager of the business known as “[Business 1]”.
In late 2002 the mother and father again separated and the father returned to live in Adelaide.
In late 2003 the mother and father reconciled. The father returned to live in Sydney with the mother.
In October 2004 an Apprehended Violence Order was made for a period of 12 months against the father protecting the mother.
In October 2004 the child, N, was born (she is now aged 6 years). The child was conceived with the assistance of in vitro fertilisation (“IVF”) using the father’s sperm and a donor egg harvested from a friend of the mother known as “[Y]”.
On 16 October 2004 it is alleged that the mother called the police because of a dispute with the father.
On 29 October 2004 it is alleged that there is domestic violence between the mother and father.
In December 2004 the mother returned to work and from that time, the father was primarily responsible for the child’s care.
In late February 2005 there was an alleged incident of domestic violence by the father against the mother. The police arrested the father after spraying him with capsicum spray. He was released on bail conditions in relation to his dealings with the mother.
In March 2005 there was a report of domestic violence between the mother and father and the bail conditions were extended to protect the child.
On 11 June 2005 the mother and father had an altercation where the police were called to the house. The father broke his leg whilst running away from the police.
In June 2005 the mother and father separated. The mother employed a nanny to care for the child.
In July 2005 the father is convicted of contravening an Apprehended Violence Order.
From mid 2006 the mother and father lived separately and apart under one roof.
From 2006 to 2008 the father was primarily responsible for the child’s care.
On 8 January 2008 the mother and father argued over an amount of coffee. The police were called and the father left the home and stayed in a motel.
On 9 January 2008 the father returned to the home and the mother contacted the police.
The father alleges that the mother argued with the police whilst holding the child in one hand and a knife in the other hand pointing it at her stomach and yelling, “This is my house, if you won’t help me, I will kill myself, I will kill myself”.
The mother alleges that the child was with the father when she pointed the knife towards herself and said, “If you want me to move out I will kill myself”.
The police overpowered the mother and removed her from the house.
The child was left with the father.
A provisional Apprehended Violence Order was granted for the protection of the father and the child against the mother.
The mother was taken to Hospital 1 to be examined by a doctor and was subsequently released. The mother was subsequently contacted by a social worker and a case worker from the Department of Community Services.
The father alleges that the mother rang him on 10 January 2008 and said, “I am a tiger, you are a monkey. I am coming home, we will see who sleeps tonight” and, “You love your mother very much. Soon you can be with her” (the father’s mother had died two months previously).
On … January 2008 the mother and father attended the Local Court in relation to an Interim Apprehended Violence Order. The mother consented to the Orders being made. The mother alleges she did not understand what was going on and subsequently instructed her solicitors to appeal the Orders.
On 21 January 2008 the departmental investigation into the incident of

9 January 2008 is complete and no further action is taken.
On 6 February 2008 the mother filed an Initiating Application in the Federal Magistrates Court seeking equal shared parental responsibility, that the child live with her and spend time with the father every second weekend. She also sought interim orders that the child live with her and spend time with the father each Saturday.
On 9 May 2008 the father filed a Response seeking equal shared parental responsibility, that the child live with him and spend time with the mother every second weekend and that the father and child be permitted to relocate to L, South Australia. The father proposes that the child spend differently defined periods of time with the mother after such relocation. The mother and father agreed to an order for a report by Dr R to be procured.
On 12 June 2008 the mother and father agreed to amend the Apprehended Violence Order so that the mother could reside in the same home with the father and child. The only remaining order was that the mother would not assault, molest, harass, threaten or otherwise interfere with the father or the child. The mother and father then lived separated under the same roof.
On 20 June 2008 the mother alleges that she was running late to collect the child from child care and asked the father to do that. When she returned home, there was an altercation wherein he referred to her as a “Hooker”, made a fist close to her face and then contacted the police. The mother’s evidence is that the police attended the home, took the mother to the police station and said to her, “If you have an argument at home, we will pick you up again”. The mother was thereafter returned home.
On 21 June 2008 there was an altercation between the mother and father at home. The father alleges that the mother threw faeces at the father. The police attend, interview the father and videotape the scene. The mother alleges that the father entered the room while she was in the bathroom and pushed her onto the toilet. The mother spent the night at Hospital 1. The conflict took place in the presence of the child who says that she saw the father kick the mother.

On 22 June 2008, Dr R issued his first report.
On 22 June 2008 the mother returned from hospital to the home and the father was there.
On 28 June 2008 the mother alleges that the father sexually abused the child. The mother alleges that she walked into the father’s bedroom and saw the child on the bed with her underpants around her knees and the father’s head in the child’s genital area. The mother alleges she said, “What are you doing?” and the father responded, “It's fine, we are just playing, get out.” The father then said to the child, “If you move, I will smack your bum”. The mother then leaves the child with the father for the rest of the night.
The father denies the allegation.
On 29 June 2008 the mother reported the incident of abuse to the police.
The mother said that she did not contact the police immediately as she was afraid given her recent involvement with the police and the AVO.
The Department of Community Services receives information that the “Father had kissed [N] in the genital area”.
A departmental officer and the police interviewed the child and the child makes disclosures during the interview.
The mother is interviewed by Detective Senior Constable D. A provisional Order (ex parte) was made against the father for the protection of the child.
The child is examined at Hospital 2. Samples for DNA testing are collected.
On 30 June 2008 the matter is investigated by a Joint Investigative Response Team at O. The father is interviewed at a police station.
In July 2008 the Director-General of the then called Department of Community Services was given leave to intervene and interim orders were made for the Director-General to have sole parental responsibility for the child, for the child to live as directed by the Director-General and to spend supervised time with both the mother and the father. The child was placed in the care of a foster carer. The child is transported to a foster care placement.
On 4 July 2008 the child makes a disclosure to a departmental case worker.
On 7 July 2008 the foster carer tells a departmental case worker that the child made another disclosure.
On 10 July 2008 the mother contacts the Department complaining about the child’s presentation and an application for an Apprehended Violence Order is heard at O Local Court.
On 30 July 2008 the father denies the allegations that he has dealt with the child inappropriately.
In July 2008 the mother engages a full time manager, Ms K, to operate the Sydney adult entertainment industry business.
In August 2008 the mother attends a parenting program for mothers hosted by F Counsellors.
On 1 August 2008, Consent Orders are made that the child remains the parental responsibility of the Minister of Community Services and further orders are made that:
a)the child live as directed by the Director-General of the Department of Community Services
b)the child spend time with each parent for two hours, with such time to be supervised
c)an Independent Children’s Lawyer be appointed
d)Dr R be appointed to prepare a further expert report addressing various issues as set out in the Consent Orders and
e)the matter be transferred from the Federal Magistrates Court to the Family Court of Australia.
On 19 August 2008 the father’s solicitor filed a subpoena seeking documentary records from the Joint Investigative Response Team, the Department and the police.
On 10 September 2008, Dr R issued his second updated report.
From October to December 2008 the mother attends a preliminary spoken and written English course at a Sydney Community College.
On 25 November 2008, Dr R issued a third report (Addendum).
On 26 November 2008 the Department of Community Services receives results of the DNA testings of the samples taken from the child at her medical examination. Semen was not detected on the swab, underpants or the pyjamas. The DNA recovered from the swab is consistent with originating from a female individual.
On 27 November 2008 Orders were made providing for each parent to spend two hours supervised with the child each week.
On 27 November 2008 further orders were made that:
a)Dr R’s report dated 10 September 2008 be released
b)the child continue under the parental responsibility of the Minister for Community Services
c)the child live as directed by the Director-General of the Department of Community Services
d)
note – the child will spend two hours with each parent between

27 November and 5 December 2008, such time to be supervised by a delegate of the Director-General of the Department of Community Services.
In February 2009, Mrs K, the mother’s employee, returns to Asia to see her ill father. The mother advertises for a Manager to manage the adult entertainment industry business and, up until the end of March, the manager does six days a week and the mother does one day per week.
On 18 April 2009 the mother obtains a full-time manager for the adult entertainment industry business.
On 1 June 2009 Orders were made as follows:
a)leave was granted to the mother’s solicitor to issue subpoenas for the notes of Dr R, Dr N and Dr B, the treating practitioners of the father
b)the matter was set down for hearing for five days from 10 August 2009
c)by consent, the intervener was granted parental responsibility for the child pending further Order
d)liberty was granted to apply on seven days' notice
e)photocopy access was granted in relation to the tender bundle produced by the Independent Children’s Lawyer.
On 12 June 2009 the mother’s solicitors issued subpoenas to Dr B, Dr N and Dr R in relation to the father.
On 19 June 2009 the father issued a subpoena to Contact Centre 2 from “[Contact Services]” in relation to notes regarding his time with the child.
On 6 July 2009, Dr R issued his fourth report.
From 10 to 14 August 2009 the final hearing was heard before Justice Rose.
On 28 September 2009 the mother attended Local Court for the offence of driving whilst her licence was suspended. She received a Section 10 Bond.
On 30 October 2009 Justice Rose handed down his final orders and judgment. Order 2 of the final orders is that the intervener have sole parental responsibility for the major long-term issues in relation to the child. Order 3 of the final orders is that the child live with the mother commencing Saturday,

7 November 2009.
On 4 November 2009 the Director-General filed a Notice of Appeal in relation to the final orders.
On 6 November 2009, Justice Rose granted a stay application pending appeal.
In February 2010 the child commenced kindergarten.
On 20 August 2010 the Full Court of the Family Court delivered a Judgment, setting aside the Orders of Justice Rose and remitting the matter back to the Family Court for hearing.
On 25 November 2010, Dr R issued his fifth report.
For the period 3 to 30 December 2010 the foster carers proposed to travel overseas to the United States of America with the child and their children.
On 6 December 2010, Orders were made for the release of Dr R's Report dated 25 November 2010.
The matter was listed for final hearing before me on 11 to 15 April 2011.

The Issues

The Court is being asked to determine:
a)who should have parental responsibility for N
b)with whom N should live with, spend time with and communicate with and
c)what, if any, injunctions should attend the time that the child is to live with either parent.

The Evidence

In addition to documents tendered to the Court on behalf of the various parties, affidavits were filed by the parties.
The father relied on three affidavits sworn by him and the evidence of one Ms H, his sister. He gave some oral evidence and was cross-examined.
The mother relied on a number of affidavits filed by her and an affidavit of a person who had taken over the operation of the mother’s adult entertainment industry business. The mother gave some oral evidence and was cross-examined.
The intervener, the Director-General of the Department of Family and Community Services, relied on the affidavits of two caseworkers associated with the child’s case in the Department, one of whom was Ms F. They also relied on the affidavit of Ms Z, the current caseworker assigned to the child, and on the affidavit of one Ms A, the manager of casework of the Department.
The Independent Children’s Lawyer relied on the five reports of the single expert Dr R.

The Evidence of Dr R

In the five reports, Dr R informs the Court of his developing opinion in relation to the mother, the father and the child.
In his final report prepared on 25 November 2010, importantly Dr R expresses in summary the following matters.
That on his interview with the child she appeared friendly and co-operative and appeared to be confident. She spoke of as “nice” or “heaps of nice” about those adults and children with whom she was living in foster placement. She described herself as happy living with her foster family and reported that nothing bad happened to her there. In relation to her visits to her mother and father, which had been in place, she reported the experience as “kind of nice”. She said that she wanted to live with her mother and father and was also happy living with her foster parents, P and B. She said that if her father and mother were not living together her father could take her to her mother’s and vice versa.
He reported that the mother was critical of the foster parents as being too hard on the child. This criticism was offered openly in front of the child. She spoke of the child being, she said, unhappy and scared of her foster mother. She asserted that the foster care was poor and that the child was suffering from nits and had a smelly body because she was not washed properly. She also believed that there were too many children living in the home.
The mother informed the expert that she wished to assume the role of full-time carer for her child. She said that she would permit the father to see the child during the day only because at night he can’t control himself and gets drunk.
The father informed the expert that, in his view, it was best for the child to reside with the mother. He confirmed that he was not in a position to take her. He accepted that the mother was in a better financial position to care for the child. He was not unqualified in his belief that the mother could care for N, indicating that she does need to be careful.
He said that he knew that the child was progressing well educationally and that she seemed bright for her age.
The father said of the mother’s allegations of child sexual abuse, that they were a “con job”, meaning a “confidence trick” or otherwise part of a course of deceptive conduct.
The father did express concern that the mother was working in the sex industry however, said that his concern had been eased on learning that the mother had leased the business. He was aware, he said, that the mother took a knife to a “fellow who got her pregnant” but he was unaware how long she had stayed in gaol. He referred to other convictions of the mother for assault and illegal adult entertainment industry businesses.
The father confirmed that after he lost the care of the child he took to drinking but asserted that he was more moderate in his drinking now; limiting himself to perhaps three glasses of cabernet sauvignon at a time.
The father said that he was not communicating with the mother, and he too had concerns for the number of children in the foster care household and the hygiene there.
In a joint interview with the mother and the child it seemed to the expert that the mother did not understand the child’s needs and that criticising the foster family may not be helpful to her. On continuing her criticism of the foster family the child became anxious and wanted to leave the interview. For a time the child ignored what the mother was saying about her returning to her home and her feelings for the child. Nevertheless, the child appeared to be quite excited to see her mother and they cuddled. In her interview the mother emphasised, what appeared indeed to be the case, that she had taken a lot of steps to improve the situation in which she found herself. She had sold her former home and reduced her debt, the payment of which had been a driving force in her desire to work as hard as she did. She conceded in evidence that she had, prior to the child going into care, placed too much emphasis on the reduction of her mortgage and not enough on the care of the child. She said she had sold her home, ceased work, and made a lot of financial sacrifices to have her child returned to her.
In a joint interview with the father and the child, when the father explained that he had told the child that there was no possibility of him and her mother living together again the child left the room apparently in some irritation.

The conclusions of the expert with regard to the nature of the relationship between the mother and the child were, inter alia, that:
a)the mother and child had a close loving relationship and there was a strong bond between them and they enjoyed spending time together
b)despite the positive nature of the relationship between the child and the mother he did not think that the mother was a capable parent and would not be able to care for the child as a primary carer
c)he did not believe that the mother had insights into the emotional or psychological needs of the child
d)he offered the view that he did not believe that she had appropriate values with regard to sexuality to be able to care for a child, or that she had the emotional ability and capacity to understand the child or respond to the child’s needs, or that she could meet the child’s developmental needs
e)his observation was that the mother was extremely immature in her emotional responses. He says she is able only to focus on her own needs emotionally and has no insight into her deficiencies
f)he said that the mother’s history indicates that the mother has a tendency to behave in an extreme way when under stress
g)whilst the mother has had a troubled background, the expert says that she had developed strong and apparently successful survival skills, but in his evidence he commented that they were not appropriate to the society in which she now lived
h)whilst he said that he does not believe she has any formal psychiatric disturbance, he does believe, on the personality dimension, that she has a severe personality disturbance which he found difficulty in describing
i)the mother, he said, demonstrated significant antisocial personality traits. He asserted that the failed sexual abuse allegations indicate the extent to which she was prepared to go to protect herself, but he did not believe that her intentions are malicious but rather, are more in a sense a product of a need to survive and cope
j)whilst the mother has made attempts to change her life, he does not believe that she would be able to change the fundamental problem, which is due to the mother’s lack of insight into her emotional needs
k)it was his view that the mother did not have the knowledge or skill, or was capable of learning the skills, of managing interpersonal needs and understanding the needs of caring for a child. She has not demonstrated, he said, that she is able to emotionally put aside her own needs for the child
l)the mother, he says, is looking for reasons to undermine the child’s placement in foster care, and he is concerned that she will agitate the child to join in and that this will destabilise the child
m)the expert was quick to add that notwithstanding those deficits the mother did care for the child and does have an understanding that there is no one else in her life that is likely to be close to her. The only other closeness it seemed for this mother came from the girls working in her adult entertainment industry business.
The expert’s conclusions in his report of the nature of the relationship between the father and the child were that:
a)the child did have a bond with the father and saw him as an important person in her life
b)the father has not indicated a capacity to make changes in his life to accommodate the child’s needs, in particular, he said that in his previous report he had said that the father would need to get a job, change residences, and cease drinking completely. At the time of the report the expert had not had available to him the subsequent evidence that the father had procured the employment referred to above. It was clear from the father’s evidence that he had not abstained from alcohol and saw no reason to and said it was not his intention to do so. He did however see that the father had a role in the child’s life but saw that role as an avuncular one. It is noted that, the father, in his oral evidence indicated that he has asked the child a series of questions which were inappropriate to ask a child of her age and which, in part, might have the effect of undermining the child’s present placement.
As to the child’s wishes the expert said that whilst the child is developing well normally, emotionally and cognitively for her age he did not believe that she was presently mature enough to be able to form a view about what is in her best interest. She does, he says, have an idealised view that her parents may be reunited and they could be a family unit together again. The expert says that the child does not have any sense that her parents are dysfunctional as individuals and are extremely destructive with each other.
The child, he says, has formed a good relationship with her foster parents and her peers. She seems to understand that this is good for her. She is also doing well at school. He offers the opinion that all the measurements appear to be positive ones for her in her current circumstances. She was quite irritated, he says, by the parents and wanted to leave the interview of both parents at particular times. The mother and father did not appear to be able to tune into her needs or engage her well. Both parents, he said, appeared to be occupied with their own issues rather than with the child.
The expert made the following recommendations:
a)that the best outcome for this child was to be placed in long-term foster care and that any change of the foster carers needs to be considered carefully
b)that the child should have fortnightly contact with her parents, with the parents alternating each fortnight, and that the visits should be for a period of two hours
c)that there is restraint against denigration by the parents of each other or the foster parents. For so long as the mother and father are unable to contain themselves he suggests that the contact with them be supervised. He says that the Department of Family and Community Services needs to monitor this. It certainly is not his evidence that the parents can be trusted on this front now but he does leave the door open to remove supervision on the Department being satisfied that it is appropriate to do so.
The expert was cross-examined and confirmed that he had difficulty categorising the mother’s personality disturbance because she was from a different culture and her language skills were not sophisticated, but said that she had significant antisocial personality traits.
He observed that, to be fair to the mother, she had suffered an enormous adversity during her life, and he thought her survival skills and qualities have helped her survive extreme adversity and have become part of her personality. Unfortunately, those survival skills of being able to manage under extreme stress in a situation where she does not need those survival skills to that extent, are not necessarily that useful in being able to manage a more suburban lifestyle.
The expert’s attention was drawn to evidence of three episodes of the mother using a knife. The first one being its use in causing a fatality. The second being a report in 1998 arising out of her chasing a man with whom she was involved in a dispute around a car with a flick knife. The third incident was when she used a knife to threaten harm to herself whilst the child was on one version there and on another there but removed from the situation. The expert, whilst not commenting on the mother’s proclivity with knives, said that they were examples of the mother reacting in an extreme way when she is under extreme duress.

He said that the mother’s capacity to parent would be affected by an inability of her to remain calm, to act in a considered way and not take extreme measures. He also offered the opinion that the mother was not capable of being stable enough. There was, he said, a possibility that if the child challenged her she might react in a dangerous manner.
The expert had recommended identity or recognition contact between the child and her parents. He agreed that this was based upon research that has been undertaken with adopted children of their need to know who their parents are and to maintain some sort of contact with their parents. He further said that he was concerned that any such contact between the child and her parents should be supervised, and that if it is not there is a danger that the mother or the father might seek to undermine her current placement. He did say, however, that the Department could be reposed with discretion to increase the time and decrease the supervision of the parents if appropriate, presumably meaning that this could occur if they developed the trust that the parents would not undermine the child’s placement.
When told of the fact that since the child had been placed in foster care the child had been to respite care on 26 occasions in two years and nine months with six different families, he said that that was certainly not ideal. However, he said that respite was a matter which might have either negative or positive effects for the child, but one had to balance that against the positive effects for the foster family. He also observed that much depended on the relationship between the child and the family offering respite.
Given, he said, that the relationship between the child and the parents was good he could see no downside to the child spending respite care with the mother or the father, providing it was positive and constructive time and did not have an adverse or undermining effect on the placement of the child or on the foster family. He did say that there was a problem, however, with the mother’s difficulty in understanding what is appropriate for the child and how to react emotionally in appropriate ways. There are, he said, examples of when the mother has inappropriately questioned and put pressure on the child, or has intentionally tried to get favour with the child by offering presents and on other occasions threatening the child. She has, he said, difficulty in understanding what is important and how to offer basic nurturing. Her history, it seemed to him, did not enable her to have a full grasp of how to be a nurturing, caring parent.
The expert described the situation of the father as chronically unstable. He said, “that’s [gambling] a problem and the father, at the time of my last assessment, was not in stable accommodation, and so he wasn’t in a position to offer any stability to [N], even if he did want to take over the primary care”.
The expert, who interviewed the father on Melbourne Cup Day, observed the father to be fragile and agitated, and reported that the father had said that he wanted to go to the Melbourne Cup celebration and that he had placed a bet. This he said put the father in a difficult situation of wanting to attend the celebration, versus tending to what was a critical time for his daughter. He assessed the father as preferring to have been at the Melbourne Cup celebration. It was an example, he said, of the father’s prioritising his needs above those of the child, and drinking was another example of that.
It was the view of the expert that the father should not have overnight time with the child because of his alcohol related problems. The expert also expressed concern that if presently the mother had extended time with the child, because of her difficulty in maintaining a reasonable responsiveness to the child, particularly if the child became more challenging, there could be serious undesirable effects for the child.
Cross examined by Mr Di Lizio on behalf of the mother, Dr R:
a)revised some of his evidence as to the mother and noted that her working in the sex industry would be explicable in terms of her need for money to pay the mortgage which, without contribution from the father, was at $5,000 per month, but said also that the mother derived her sense of identity and satisfaction from the industry in which she worked. The expert said that the mother had an abnormal attraction to money but that the extent of her debt, whilst explaining it, did not explain, it appears, the choice she made to pay that by working in the sex industry and depriving her child of her time. The mother, indeed in her evidence, observed that she had regretted that she had placed so much emphasis on the acquisition of money to the detriment of caring for her child
b)said when it was put to the expert that the father had been in an incident with his ex-wife where he loaded a rifle and a siege situation was said to have developed (it being noted that some parts of this story were put in issue by the father), he confirmed that it had not been mentioned to him, and he agreed that it lent support to the mother in her accounting of her life with the father
c)noted that he had been informed by the father that he had incurred an injury to his leg whilst running away from the mother. When put to him that the evidence suggested that the father was running away from the police, he agreed that might add more depth to the story and show that the mother on that occasion was not acting erratically
d)confirmed that it had been his opinion that the mother was unlikely to reduce her work because it was important to her, and provided commendation to the mother when being informed that she had withdrawn a distance from her business, in effect now being a landlord only
e)confirmed that she had said to him that she wanted to take over the care of the child and was prepared to make changes
f)accepted that it appeared, from a consideration of the evidence, that the majority of reports to police about violence appeared to be reports by the mother of the father’s violence, however he shied away from a suggestion that that necessarily meant that the father was always the perpetrator and the mother always the victim. He observed that family violence is a more complex issue in family law matters and, from his point of view, it was the effect of whatever violence had occurred on the child, rather than who was the perpetrator or initiator of it that was more important. He disavowed that he was suggesting that the question of who was the perpetrator of the violence was unimportant in considering parenting issues. He conceded, in particular, that the effect of any violence on the victim would be a matter which should be explored in the Court’s consideration but he had not done so in his considerations
g)noted an incident in which the mother threatened to stab herself with a knife which was drawn to his attention. He said that he was not aware that the night before that incident the police had been called to the premises and that the father had been asked to withdraw from the home. He conceded that the mother being asked the following day to remove herself from her own house would have been extremely stressful for her
h)conceded that he had been informed by the caseworker of her opinion that the child had accurately reported the father’s alleged sexual treatment of her, because of the consistency of the reports and the lack of opportunity for the mother to coach the child in relation to the account given by her. However, he said that the fact that the mother believed she had seen such abuse occurring was probably a very significant factor in the subsequent events of the day when the mother was asked to leave her home
i)speaking of the nature of the attachment of the child to the mother he observed that he did not think it strong, and that was demonstrated by the mother’s behaviour on one occasion throwing faeces at the father in the presence of the child, and on another occasion informing the child that she was not her biological mother and that “[Y]” was. Her suggestion that the child meet [Y], who was the egg donor, was considered by the expert to be highly inappropriate
j)agreed that examples of some of the incidents involving the child and the mother were of no great significance taken individually, but proposed that, taken together, they were significant in showing that the mother has a difficulty understanding the child’s situation and responding to it
k)proposed that there was a risk issue for the child as the mother, when under stress, has a history of reacting in a way that was either dangerous to herself or others
l)conceded that the absence of comment on some of the parental incapacities in the reports of the mother’s latter supervised contact with the child was significant and an improvement
m)conceded that his view initially expressed that the mother did not have the maturity or stability to be able to make sacrifices that are appropriate for the child had changed, and acknowledged that the mother had made sacrifices in order to become more involved with the child. She had sold her home, reduced her debt and distanced herself from the business. He expressed, however, that she required help in developing her interpersonal skills and her parenting skills
n)conceded that he needed to revise his initial view that the mother was unfit to care for the child expressed in 2008, and gave the mother credit for the steps she had taken in her life to improve her position. He conceded that perhaps he had not given her enough credit for that in his reports
o)conceded that his view of the mother had been coloured by the allegations made by her of sexual abuse by the father, and retreated from his statement that the mother had “orchestrated” such allegations, but said that the mother’s behaviour in not immediately taking action to prevent a continuation of that abuse caused him concern. It was put that the mother had been arrested by the police wrongfully some time earlier and she did not think that they would believe her. He ultimately said he did not believe that the sexual abuse issue was a live issue
p)confirmed that it was his view that the mother had insight into the emotional and psychological needs of the child and, although there was a positive relationship between the child and the mother, he did not believe that this equates to the mother being a capable parent. He went on to give some examples of matters which he said demonstrated the mother’s lack of insight and her inability to understand the needs of the child and respond to them appropriately
q)said that although he had noted the efforts of the mother to improve her position as a potential carer for the child, he still had concerns about the mother’s ability as set out above. He observed that the changes the mother had made were more impressive than those that the father had made
r)in trying to identify the risks to which the child might be subject in the mother’s care, the expert said that the mother had had a history of conflictual relationships which often involved violence
s)is of the view that the value to the child of a meaningful relationship with her mother may be undermined by parental deficits on the part of the mother.
It is for the Court to determine if the matters to which he refers, the lack of parental capacity of the mother, are such as to fatally undermine the benefit to the child of the meaningful relationship which she would otherwise have with her mother.
The conclusions made by the expert are that the mother is not a capable parent and is likely to undermine the position of the foster family.
There is not, in the Court’s view, sufficient evidence to support a conclusion that the mother would so undermine the position of the foster family. The mother has made complaints about the care of the child and they have been in the Court’s view reasonable to make, even if answerable satisfactorily. They were reasonable concerns of the mother properly expressed and, in the Court’s view, not capable of being characterised as designed to undermine the position of the foster carers. Even the expert conceded in cross-examination that the mother’s expressions of concern might have been, at least in part, out of concern for the child rather than part of a scheme to undermine the foster placement. The expert conceded that the complaints were properly expressed through the mother’s solicitors.

Evaluation of the Evidence of Dr R

In his first report in June 2008 he proposed that the child should live with the father and have contact with the mother.
He did not then believe that there was an unacceptable risk to the child from the mother as a contact parent. He stated the father was the more competent parent. He asserted that the mother appeared to place the child in a higher priority than her work, and that she was somewhat erratic and volatile in behaviour under stress. He contemplates the placement of the child in foster care if the situation does not improve.
In September 2008, following the allegations of sexually inappropriate behaviour by the father, he recommends that the best outcome for the child is placement in foster care. He also recommends that there be regular contact with the father, and that the mother have very restricted contact, possibly under supervision, because, “I don’t believe that she is able to contain her derogatory and subversive comments and statements. It’s very highly likely that the mother will initiate further proceedings against whoever the carer is. I suggest that her contact be, recognition contact, perhaps once every three months.” He admonishes the parents for not heeding his earlier warning about foster parenting and that such disregard betokens danger for the child if she were to come into the care of either parent.
In November 2008, Dr R offers the opinion that one could not draw any firm conclusions from the JIRT interview because of the extremely disturbed nature of the parents’ relationship and the extraordinary pressure on the child. He expresses the view that he holds serious doubts about the parenting capacity of either parent. He says that he regards the mother as unfit, and the father as having poor judgement because he exposes the child to the mother.
In July 2009 the expert proposes that the best outcome for the child is to be placed in long-term out of home care in order to provide the child with stability and security. He proposes that the father have limited time with the child at first, increasing to unsupervised contact overnight over a period of 12 months. The contact with the mother that he proposes is simply identity contact as, “she is inappropriate with her and I fear will attempt to undermine the relationship with the foster family”. He suggests certain conditions if the father is thought to be a suitable candidate as the primary carer.
In his report of November 2010 he recommends that the child should be placed in long-term foster care and have contact with the parents fortnightly alternating. If, he says, the parents are unable to contain themselves from undermining the foster family, then the contact would need to be supervised, but he observes that it would be better for the contact not to be supervised. He observes that both parents are trying to find fault with the foster family and he does not trust them to contain themselves, and so recommends that the Department should monitor this closely.
All these recommendations were compromised by the cross-examination of

Dr R. He modified his criticisms of the mother and her capacity to appropriately parent the child. He acknowledged that in forming his recommendations he had not taken into account significant changes made by the mother, and he had not taken into account the domestic violence wrought by the father against the mother.
He conceded that the description that the mother had “orchestrated” and “manufactured” the child’s sexual abuse allegations were harsh assessments and that he thought the word “encouraged” might be more apt.
He conceded that the most significant problem he thought with the child spending unsupervised time with the mother was that the mother might seek to undermine the foster placement.
This assessment was based on the expressed concerns of the mother as to the care of the child in a number of aspects. It seems to the Court that such complaints as the mother made were reasonable, understandable and properly made. Whether they ultimately proved justified is another matter, but the expert was looking at her intention in making them and the Court does not accept that they represented an intention to undermine the foster placement.
The expert asserted that the mother’s characteristics of personality impinged on her ability to parent the child, but given the cross-examination and the answers elicited, it is hard to find a basis for the assertion.
The expert conceded that he had found that the mother had an abnormal attachment to money. It was then put to him the obligations which the mother had assumed in an endeavour to provide a comfortable home for the child, with mortgage repayments in excess of $5,000 per month with no significant contribution from the father, and of which he became aware might explain her attachment to the gaining of money to which his reply was, “That certainly would explain it.”
Later in cross-examination the expert said that whilst the fact that the mother was financially burdened might have been a motivation for her to work, he also saw that she had a strong investment in work and that she would find it difficult to change irrespective of her financial position. Later, he confirmed that he had in his initial report come to the view that the mother’s investment in her work, emotionally and psychologically, had made it more important to her than the desire to care for the child. He acknowledged, however, that the mother had made some substantial changes. She had stopped direct functioning in the business which is now run by others. This, he acknowledged, was a substantial change and a great credit to the mother. He later makes, in cross-examination, a concession that the mother had made it clear that she wants to take over the care of the child and was and has made changes to remove obstacles to that happening. He noted, in contradistinction to his earlier assessment that the mother did not have the maturity or stability to make such changes, that his view had changed and that it had to be acknowledged that the mother had made sacrifices and changed her circumstances so that she could be more involved with the child. He suggests, however, that the mother needs to make progress in the development of her interpersonal skills and parenting skills.
It is made clear by the above that the expert’s view that the mother was prepared to put her work and her business ahead of her caring for the child is an opinion he cannot and does not sustain.
The expert is further asked in cross-examination about the violence perpetrated by the father on the mother. He accepts that that would have been a relevant consideration to his opinion and that it should have been explored further. He acknowledges that he did not explore it further in his report.
In considering the mother’s responses to the child he is asked the following question, “So if nothing was noted, nothing untoward, in relation to those things happened, is that any indication to you of any improvement in the mother’s understanding or behaviour towards the child?” to which he replies, “I think that that is a positive. If she has been able to manage and maintain herself, and reduce the negatives and maintain the positives, then that is a very positive development”.

The expert acknowledged that in his report of November 2008 he said,

“I regard the mother as an extremely unfit mother who should not have care of the child.”
He is asked if that view has changed and he replies:
I think that the mother – I think to give the mother credit, she has made substantial changes in her life and she has attempted to improve herself as a person and also improve her ability to provide, or be in a position to provide, some nurturing and parenting to the child. And unlike the father, who appears to have been stuck and not able to have made any substantial change in his circumstances, I think that the mother should be given credit for the fact that she has made substantial changes in her circumstances, and perhaps I have not given her enough credit for that in my reports.
The evidence of the expert as to the mother’s involvement in sexual abuse allegations was also qualified under cross-examination, of which allegations he says, “I felt that she had used the opportunity to - probably a combination of concern for the child but also anger towards [the father] about the circumstances”.
It is put to him that he said in his report, “I believed the mother had encouraged and manufactured sexual abuse allegations”. Asked then if he still held that view he said, “Well I think that the mother had - probably the word “manufactured” just as “orchestrated” is too strong, but I think that she certainly had encouraged the sexual abuse allegations”.
The question of what is meant by “encouraged” is further explored with the witness and the following exchange occurs:
Do you say that she encouraged it in some express form or express way? ---Well the fact that she had, through her suspicions, concluded that the child must have been sexually abused and, therefore, decided to take the child to the police the following day, despite the fact that she had previously thought that the police wouldn’t believe her and that she had an aversion to the police. So it would seem to me that she, in some way, had either – had concluded or had allowed herself to form the view that the child must have been sexually abused the night before and had, then, questioned the child about what had happened.
Well, it’s a fact that she questioned the child and she did so in front of the police station in the car ----Yes
You were aware of that? --- Yes
Is that where you say the encouragement was, in that questioning? --- Absolutely yes…If you take a child to the police station and then question the child in front of the police station, to then take the child inside to the police station, for the child to then report to the police, then I would say that’s encouraging the child.
The expert also conceded that such questioning was not uncommon in these circumstances.
Asked by the mother’s solicitor what it was about the mother that he feared might put the child at risk, the expert said:
Well, the risk is that she may get in - that she has a history of conflictual relationships, which are often involved in violence, including the first boyfriend and also [the father]; that she has had a number of episodes where she has attempted self-harm, or at least one attempt with a knife. She’s had a lot of involvement with the police in these unstable relationships. She’s had extreme reactions, as we’ve talked about, you know, when under stress and taking care of a child is a stressful activity or a stressful job. So I do have concerns about her overall ability to, if she were the primary carer of the child, to be able to manage all of those issues. But I think I should also, on the other side, say that she’s made substantial gains in a lot of ways. She’s complied with the requirements that have been placed on her. She’s obviously developed and is continuing to develop a good relationship with the child, and has made, you know, many more sacrifices and changes than the father has. And perhaps on reflection there should be more credence given to her efforts and more value put on those efforts, when considering your Honour just thinking about the issue of identity or recognition contact, which is something that was discussed earlier. I do think your Honour may need to reflect on whether – certainly the father doesn’t appear to make any substantial changes in his life, to be able to accommodate the child, but the mother has made substantial changes and if there is a differential that should be considered, then I would certainly favour the mother being given more opportunity to spend time with the child, as long as your Honour was clear that she wasn’t attempting to undermine the child, or if the child was the placement with the foster parents. So I think that there does – perhaps I haven’t given enough credit to the mother for the efforts and changes that she has made.
Asked by the mother’s solicitor what is the risk to the child if she lives with her mother, the expert said:
I think the risks are that the mother is emotionally, I think, very vulnerable. I do think that she is very childlike in her manner and does have a lack of experience and a lack of emotional maturity in her interactions. So I think the risk is that there could be a mutual dependency between the mother and the child and that the emotional reliance of the mother on the child does worry me to a certain extent. So I do understand that the Department did – or was considering whether restoration may have been possible to the mother, so, obviously, they were impressed by the fact that the mother had made some substantial gains and, as again, I think it does need to be acknowledged. So I think, your Honour, you will probably come to a point where you need to decide whether the potential changes of the mother may have been substantial enough to accommodate the child and to provide care for her, or whether she is in a situation that is providing well for the child and need you to make a decision of choice between these two scenarios.
In a further discussion the expert says that the mother has clearly put aside her needs when the child has needs.
In re-examination by Ms Messner for the Independent Children’s Lawyer the expert agrees that he has made concessions in his oral evidence that are different to the report in relation to the gains that the mother has made. Asked why he might say she is still unable to be the primary carer of the child, he replies to the effect that she needs to demonstrate that emotional capacity to be able to be there for the child and to be responding to the child’s needs. He goes on to say that the mother has done positive things in creating some stability in her life and availability for the child. The expert agrees that the mother could take over the role of respite carer for the child, and he indicates that that could start straight away if she had some additional help.
The expert, in his evidence and in answer to the questions of Mr Anderson, said inter alia that the Court should consider the parents separately and in the light of the progress or lack of it that they had achieved. The expert said that appropriate support and input for the mother could be of great assistance. That help he proffered might be found in health services and related services and he supported the idea of involvement of the mother in the Program 1. He also thought that the mother would benefit from anger management courses. He affirmed that, given that the mother had this support, the time with her could be expanded.
The expert discussed the question of parental conflict and its effect on the child. It was said that it seemed possible in this case that, providing there remained no necessity for significant interaction between the parents, arrangements could be made for the child to have some limited and conditional contact with the father without the risk of significant harm to the child.
Overall the oral evidence of Dr R was at variance significantly with the reports that were before the Court. However, it was an honest attempt by the expert to give full weight to the perceived progress of the mother in organising herself and her life, and reflected information previously unavailable to him significant to his view. The reports, in part, became of little value. It had, of course, been in significant part the historical reports of the expert which had caused the current situation of foster care for this child to develop. Taking his evidence overall, particularly his oral evidence, it seems that the expert was retreating from the stance that the mother is precluded from assuming primary care of the child. Having said that, it was also clear that were she to do that for whatever period she would benefit, and her parenting would benefit, from support being provided in a number of ways.
What risks might attend such an assumption of care? The primary written evidence of the expert was so varied by his oral evidence that it became difficult to discern all of the risks. One of the potential risks seems to be the possibility that a placement with the mother became destabilising for the child. The child has settled into her foster care but has continuing and supervised contact with her parents. She would be destabilised if a move to her mother’s permanent care was temporary and foster care were to be resumed, particularly if the present foster parents were unavailable to her.
However, even though the present foster parents have indicated that they would like to take the child into their long term care, the position revealed by the affidavits of the Department does not make one confident that stability presently necessarily exists in that home. The child has, as has been pointed out, spent considerable time in respite care. There have been up to seven children in the foster home, and the placement there of one child was the cause of unrevealed concern to the Department. Even in that home the child has suffered the destabilising effect of movement from one school to another during her first two years of schooling. It is not necessarily certain that the child would achieve a continuing stability in the foster home.
It is the view of the Court, taking all the evidence provided, that it is on the balance of probabilities of greater benefit for this child to gradually and carefully move from foster care to the care of her mother. That should be a gradual process and one during which the skills of the mother are developed, and her understanding of her child’s needs broadened. There should be for some time a safety net against the possibility (and on the evidence the Court finds that such a possibility is not probable) that the child’s needs might not, by such a process, be met. There needs to be ongoing assistance to the mother in relation to her personal development and her overcoming some of the problems which have been attendant on her past.
The child has a loving relationship with each of her parents and provision should be made, consistent with the need to protect the child from some of the perceived problems of the father’s care, for the child to have a continuing relationship with the father.
It seems also that the child has developed a warm relationship with her foster parents and the “foster siblings”. There appears no reason why, if wanted, that relationship might not be permitted to continue.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see s 60CA). In determining what is in the child's best interests, I must consider certain matters under s 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section (see s 60CC(2) and (3) respectively).
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see s 60CG).
I will also be guided by s 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
I am required to consider matters set out under s 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
…When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
…The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a)The benefit to the child of having a meaningful relationship with both of the child’s parents

This child in the ordinary course should have a meaningful relationship with each of her parents.
The orders proposed to be made will allow this child to maintain a meaningful relationship with each of her parents. The relationship with the father will not be of long duration but, given the history of the father, particularly with his problems with alcohol, such curtailment is in the interests of the child, and makes it more likely that the relationship between the child and the father will be meaningful and not attendant with the problems with alcohol that the father has hitherto had.
The alternative orders sought by the Department involve a minimal relationship between the child and each of her parents. It is in the nature of recognition contact. In the view of the Court such a programme will not permit of the child continuing in a meaningful relationship with each of her parents.
There is no doubt in the Court’s mind that each of these parents love their child and that the child loves each of them. It is clear that the mother has taken significant steps to so alter her life that she can be available to her child and has put her own interests as subservient to the child’s interests. It is the view of the Court that, with help provided for in the proposed orders, the mother will be strengthened and assisted in continuing along that path.

(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

This child has been the unwilling observer of domestic violence in the relationship of her parents. It is undoubtedly the case that steps have to be taken to avoid any recurrence of that problem. It is proposed that the orders made will minimise the contact between the parents, and in those circumstances it is found that there will be a minimal risk of such a recurrence. It was suggested that the mother was drawn to relationships of which a feature was violence. The mother’s history does not have to be her destiny. The mother has, in the view of the Court, oriented her behaviour to the needs of this child, and it is of the view that the possibility of such a further violent relationship being visited upon the child is remote. To assist the mother in maintaining a child focus in her life and avoiding risk to the child there will be series of orders which provide assistance to the mother in gaining and maintaining that focus. It is also the evidence before the Court that the mother has not re-partnered since separating from the father.

Additional considerations

(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

It is noted that this child has expressed views, both that she would like to live with her mother, and that she is happy in her present foster placement. She has also said she would like to spend more time with her father. Her age in the Court’s view does not permit of great weight being given to those views but they are noted.

(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 Court notes with interest that the existence of three years of foster care has not diminished the warm and loving relationship that this child enjoys with each of her parents. The Court finds that each of the parents loves their child. The child has a warm relationship to her foster parents and particularly the four and a half year old child in their household.

(c)The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

The father in this matter has supported the mother seeking an order that the child live with her. He and the mother are at issue as to the ongoing nature, in that event, of time to be spent by the child with her father. It is proposed by the mother that such time be during the day because of the father’s past problems with alcohol which generally became evident at night. The father has made it clear that despite advice to the contrary it is not his intention to give up alcohol and says that his drinking is now moderate. The Court finds it concerning that, having regard to his history and the advice that he has been given, he has not undertaken the task of putting that advice into practice. The Court has no evidence of an expert nature as to his present functioning with alcohol. In the circumstances, the Court finds the mother’s proposal prudent. In addition, having regard to the history of this relationship, it seems appropriate that the contact between the mother and the father be minimised to avoid any recurrence of past problems.
If the father’s position changes in time, and particularly when the child has achieved greater age and maturity and perhaps some greater capacity to protect herself, things might change to a point where some reconsideration of these matters might be undertaken.
Notwithstanding those caveats, both parents support the view that the child should have an ongoing relationship with the other.

(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

N has resided with her foster family for the last three years and it is proposed by the orders which will be made in this matter that she will continue to live there for some time to come. It is ultimately proposed that the child will reside with her mother. These changes will undoubtedly have some dislocating effect on the child and for that reason must be undertaken gradually. Assistance will be provided during that period to the mother to manage the change. The child will be moving from a household of many children to one in which she will be the sole centre of attention. She will be deprived, absent a continuation of the relationship, of ongoing friendship of her foster parents and foster siblings. The Court will make permissive orders to seek to avoid those effects but obviously they will depend on the attitude of the foster family as to whether they are given effect.

(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

It is clear that exposure to parental conflict is not good for children and this child is no exception to that general rule. She became distressed when her parents argued in interview with Dr R. The Court will therefore have to make orders which hopefully will minimise the opportunities of a recurrence of such conflict.

(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

This mother has had extreme reactions to stress. They are all significant in assessing her parenting capacity, but so is her history since she has removed herself from a grossly dysfunctional relationship. None of those events reported in the evidence were without a context which no longer exists. It is noted that the mother has formed no other relationship. The support which will be provided to the mother by the Orders which the Court intends to make will, in the Court’s view, make it improbable that there will be a recurrence of such reactions. The mother has made long-term changes to her life and has reordered her priorities to place her child’s welfare first. The Court is encouraged to the view that she has gained already some insight into parenting, and that will be assisted by the courses proposed that she take and the assistance that will otherwise be provided.
The mother has stable housing and income, and proposes that the child be educated at a private school near her residence.
The impediment to the father’s parenting is his past abuse of alcohol and his present view that he will not abstain from it, despite professional advice that he should. In the father’s attitude is demonstrated an incapacity to put the needs of the child in priority to his own. However there is hope for the future. It is noted that the father has acquired employment in the transport industry and will be subject to random breath testing. It is hoped that this will operate to moderate the father’s behaviour. Whilst in the past his financial assistance to the mother has not been what one would hope, his new employment will provide the means for him to make a reasonable contribution to the costs of supporting his child.
Whilst it is clear that the foster parents have provided for the child’s needs in a variety of ways there are factors of some concern, including the change of school for the child, the change of residence and the unnamed concern of the Department with the presence of a child in the foster home. The nature of the other children is something of which the Court is largely ignorant.

(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 child is a bilingual child and possibly trilingual, speaking English, Asian Language 1 and 2. She is Eurasian. She will have a cultural identity to share with her mother and the opportunity to connect with her culture, language and traditions, whilst maintaining through her school and her contact with her father her other traditions and culture. The prohibition hitherto existing on the child not communicating with her mother other than in English will be removed.

(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

This consideration is irrelevant to this case.

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

There is no doubt that, in this little girl’s life, the financial responsibility for her upbringing has largely been borne by her mother who worked hard to provide for her material needs. The mother acknowledges that she perhaps did that to the detriment of the other needs of her child but she now has been able to procure a greater balance in her life.
In the mother and father’s indulgence in domestic violence and dispute in the presence of this child, who loved each of them, reflects no credit on either of the parties or any reasonable understanding of the effect that such conduct might have on a child. There has been a change in attitude and a placement, particularly by the mother but also by the father, of the child’s interests in a higher order of priority in their dealings with each other and with the child.
The course, proposed by the orders, to be attended will afford the mother the opportunity to gain greater insight into the emotional needs of her daughter as she develops.
Both the mother and the father have been diligent in availing themselves of the opportunities to spend time with the child.

(j) Any family violence involving the child or a member of the child’s family

I have dealt with this already and will not repeat what I have said. The orders proposed are with a view to minimising the opportunity for a repeat of past egregious errors in this regard.

(k)Any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

There is no evidence of any current order.

(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 child

The Court always has as a hope that there will be no further proceedings between the parties. That possibility is not excluded by the orders that the Court will make in this case, but hopefully it is minimised, as far as the Court is able to achieve that minimisation consistent with what it otherwise conceives is in the best interest of the child.
It is clear that further proceedings would be indicated if the mother were to

re-engage actively in the sex industry, or re-engage in a violent relationship or in continuing conflict with the father or any other person. The occurrence of such events may necessitate further intervention by the Department. The only people who can ultimately ensure that this is not the case are the parties. The Court believes that particularly the mother has shown a determination, backed by action, which would lead it to the view that it is more probable than not that she will avoid such pitfalls.

(m) Any other fact or circumstance that the court thinks is relevant

This child loves and is loved by both her parents. The orders proposed by the Department would, in the Court’s view, inhibit the opportunities for the three of them to properly and appropriately express that love. That opportunity should be given with the concomitant benefits to this child of a working, albeit separated, family relationship. The Court is of the view that the risks to the child do not outweigh the benefits accruing to her within the framework of the proposed orders.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing the s 60CC Considerations

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of the child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for her parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.
In this case there is reason for the presumption not to apply. The parents have minimal communication and the mother particularly does not seek such communication. It seems to the Court likely in all the circumstances that any order which required of these parties, having regard to their history and the mother’s present attitude, to communicate would be doomed to failure.
In the circumstances it is proposed that after a time the mother will have sole parental responsibility.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
The order I propose to make is not for equal shared parental responsibility and accordingly I am not required to consider making an order for equal shared time.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set forth above which I find serve the best interests of this child.

I certify that the preceding two-hundred and twenty-three (223) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 15 July 2011.

Associate:

Date: 15 July 2011

[2011] FamCA 552

15 July 2011

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Injunction

Remedies