TYLER & SULLIVAN
[2014] FamCA 178
FAMILY COURT OF AUSTRALIA
| TYLER & SULLIVAN | [2014] FamCA 178 |
| FAMILY LAW – CHILDREN – competing parenting proposals where both parents seek the child live with them and the father seeks the mother have no time or direct communication with the child and where the mother seeks at best the child have supervised time with the father – where the mother removed the child from Australia for two and a half years – where since then the child has been living with the father in Australia for the last three years – whether there is an unacceptable risk that the child has been sexually abused by his father or involved by his father in a paedophile group – consideration of the mental status of each of the parents and the mental status of the child – where an order is made the child live with the father and spend no time with the mother – where consequential orders are made relating to future arrangements for the child including the management of future risks. |
| Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (Cth) |
| Donaghey & Donaghey (2011) 45 Fam LR 183 Sitwell & Sitwell [2014] FamCAFC 5 |
| APPLICANT: | Mr Tyler |
| RESPONDENT: | Ms Sullivan |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Christaki |
| FILE NUMBER: | SYC | 889 | of | 2008 |
| DATE DELIVERED: | 26 March 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 9 – 16 December 2013; 18 December 2013; 17 February 2014; 19-21 February 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | KDB Holmes Solicitors |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
ORDERS AND NOTATIONS:
All previous parenting orders be and are hereby discharged.
The father shall have parental responsibility for the child D Tyler (“the child”) born … 2004 in relation to all major long term issues including:
2.1.The child’s education (both current and future);
2.2.The child’s religious and cultural upbringing;
2.3.The child’s health;
On the condition that:
2.4.The father will contact the mother in writing and provide his views about any pending decision about any such issue;
2.5.Within 14 days the mother shall provide the father with her views regarding any such issue in writing;
2.6.After 14 days the father shall consider any views expressed by the mother and make the final decision and advise the mother in writing of the decision about any such issue.
The court notes that the responsibility given to the father by order 2 extends to having the sole authority to apply for and hold a passport for the child.
The child live with his father.
The child spend no time with his mother.
The child may have electronic communication with his mother, with the child being able to telephone or Skype his mother when the child requests to do so.
I accept the father’s undertaking to the court that he will at all times consider the views of the child in relation to his desire to both spend time with his mother and communicate with his mother.
The father shall ensure there is a photo of the mother prominently placed in the child’s bedroom at all times.
MS SULLIVAN and her servants and agents are restrained from taking or sending or attempting to take or send (including paying for any ticket to do so) the child D TYLER, male, born … 2004 from Australia. This order ceases to have effect on … 2022.
The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
The Registry Manager shall immediately notify the Australian Federal Police Family Law Team at Sydney of these orders and shall as soon as possible provide a copy of these orders to the Marshal and the Australian Federal Police.
The Court requests that until … 2022, the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia unless authorised by order 14. This order ceases to have effect on … 2022.
The Registry Manager shall notify the Department of Immigration and Citizenship of these orders, and the Department is requested to assist in ensuring that MS SULLIVAN does not breach these injunctions.
The child shall be permitted to travel overseas with his father for a period of no more than six weeks in any 12 month period provided that the father provide details of the child’s holiday itinerary to the mother within two months of the child’s departure from Australia.
To avoid any doubt, pursuant to s 121(9)(g) Family Law Act 1975 (Cth) (“the Act”), the court approves the publication of these Reasons for Judgment, Orders and the report and addendum of Dr R to any of the child’s treating professionals; teachers and other professionals at the child’s school; any other professional who is consulted by the father about the child’s welfare; close relatives; friends and advisers of either of the parents on the basis that the contents of those documents are not disseminated more widely.
The father shall authorise any school that the child may from time to time attend to provide copies of the child’s school reports to the mother.
The father shall notify the mother of:
17.1.Any change of his mailing or e-mail address within 72 hours of such change occurring;
17.2.Any serious illness or serious injury suffered by the child as soon as reasonably practicable after the accident or injury occurs. For the purpose of this order a ‘serious illness or serious injury’ means an illness or injury that requires the child to be admitted to hospital or if the child is absent from school for more than five consecutive school days.
The father shall provide to the mother recent photos of the child at least once per month and to that end the mother shall provide to the father her current mailing and email address.
Without otherwise limiting how the father exercises parental responsibility, the father shall forthwith obtain advice and the involvement of the child’s treating health professionals and shall follow all recommendations from those health professionals so as to:
19.1.Explain these Orders to the child and to address the child’s questions and any matters that may arise in relation to these Orders; and
19.2.To develop and implement a plan to prepare the child to deal with discovering information about himself in relation to these or any other Court proceedings and/or allegations involving himself and/or his parents.
Notwithstanding any other Order, the mother shall be restrained from approaching or communicating with the child’s school and/or the child’s treating health professionals.
No order is made that would restrict the ability of the parents to vary these orders in the future by a parenting plan.
The father’s application for an order against the mother pursuant to s 118(c) of the Act is withdrawn and dismissed and to avoid any doubt, the interim order made against the mother pursuant to s 118(c) of the Act on 19 April 2013 is discharged.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Because of the length of these Reasons, I provide the following index:
INTRODUCTION
ORDERS SOUGHT
DOCUMENTS RELIED UPON
SHORT HISTORY
THE APPROACH IN CHILDREN’S CASES
PRINCIPLES IN CASES INVOLVING ALLEGATIONS OF SEXUAL ABUSE
What the mother said about M v M & Briginshaw
THE MOTHER AS A SELF REPRESENTED LITIGANT
The mother’s absence in the second scheduled week of the final stage of the hearing
THE FATHER’S QUALIFICATIONS
CREDIT
Mother
Father
Conclusion in relation to the credit of the mother and father
MORE DETAILED CHRONOLOGY
EXPERT EVIDENCE
Dr R
Dr R’s expertise
Dr R’s independence
Dr R’s oral evidence
Mother’s decision not to cross examine Dr R
Dr W
E/Prof F
E/Prof F’s expertise
Mother’s contact with E/Prof F
IS THERE AN UNACCEPTABLE RISK THAT THE CHILD HAS BEEN SEXUALLY ABUSED BY HIS FATHER OR INVOLVED BY HIS FATHER IN A PAEDOPHILE GROUP?
The sexual orientation of the parties and the parties’ sexual relationship
The mother’s position on whether the father involved the child in a paedophile group
The father’s opportunity to sexually abuse the child or involve him in a paedophile group
When did the mother form an unshakeable belief the child had been sexually abused by his father?
The child’s fear of being touched from 18 months of age; anxiety and trouble socialising
The child’s use of the word “unkind” in June 2007
The child’s alleged statement in the third week in October 2007
After the four day business trip the child was running up to people saying “you’ve got poo all over you”
After the mother’s final trip the child was sleep disturbed and had nightmares
Allegations that the father leaves work early to “take his toddler into the bushes” and keeps the fact that he was coming home early a “secret” from the mother
Allegations that the father did not respond appropriately when the child touched the father’s genitals
Statements made by the child on 6 December 2007
The events on 7 December 2007
The JIRT audio/visual recording of interview with the child on 10 December 2007
Events after 10 December 2007
Games the mother alleges the father played with the child
The mother’s assertion that she observed the child attempting to touch his father’s penis in the week before Christmas 2007
The father balancing the child on his shoulders
The Buzzy Bee game
Koala in the underpants
Doctors and Patient
Grabbing the child when he was walking past
Bad “pussy cat game”
A spider game
Conclusion in relation to game playing
Conversations between the mother and the child about the father between 1 January 2008 and 25 March 2008
Mother’s conversation with Detective Senior Constable P at approximately 7am on 15 January 2008
The mother’s 2008 Notice of Child Abuse
What the mother alleges the child said and did on 12 March, 13 March and 15 March 2008
The mother’s conversation with Dr W on 31 March 2008
Was the child sexually abused by his father at the C Contact Service in 2008?
Dr W’s recommended reduction in father’s time at C Contact Service
Research carried out by the mother prior to leaving Australia
The mother leaves Australia after receiving Dr W’s report
The child’s statements after he left Australia
The mother’s 17 page document (Annexure C to her 2013 affidavit)
Allegations that the father defecated (and on one occasion urinated) on the child
The five recordings
Recording B 9
Recording B 12
Recording B 14
Recording B 15
Recording B 17
E/Prof F’s comments about the Recordings
Dr R’s opinion about the child’s statements after he left Australia
Entry on the father’s blog site on 18 December 2008
The child in Europe
The discovery of the child in Europe
The child’s behaviour in 2011 when he is back in his father’s care
The parents’ view about the child’s behaviour and progress since he has been back in Australia
The mother
The father
What conclusions in relation to risk of sexual abuse can be drawn from the child’s behaviours?
The father’s denials
The mother’s critique of Dr R’s report (exhibit 56)
The mother’s response to Dr W’S report (exhibit 104)
The child’s reference to wearing masks and costumes and revelations in the press that a particular employee of the agency wore an executioner’s mask and costume
Lollies
No disclosure to anybody else
Conclusion about whether there is an unacceptable risk of sexual abuse or involvement in paedophilia
IS THERE AN UNACCEPTABLE RISK THAT THE FATHER HAS MADE DEATH THREATS?
IS THERE AN UNACCEPTABLE RISK THAT THE CHILD HAS BEEN PHYSICALLY ABUSED BY HIS FATHER?
MENTAL STATUS OF THE FATHER AND ITS HISTORY
Dr LL
Mr CP
Dr W
Associate Professor GZ
Dr R
The father’s suicidal thoughts in December 2007/January 2008
Conclusion in relation to the father’s mental status
Father’s criminal convictions
MENTAL STATUS OF THE MOTHER AND ITS HISTORY
Dr W’s report and supplementary letter
Dr WM’s Report from the criminal proceedings
E/Prof F’s View
Dr R’s Report and Addendum
The mother does not currently have face to face time with the child
THE CHILD’S MENTAL STATUS AND SPECIAL NEEDS
Dr R’s opinion
The child’s early symptoms
The child’s ongoing psychiatric disorder
The child’s future prognosis
The arrangements that each party proposes to cater for the special needs of the child
Schooling arrangements for the child proposed by each parent
The accommodation arrangements for the child proposed by each parent
ARE THERE PSYCHOLOGICAL RISKS FOR THE CHILD IN HIS MOTHER’S CARE?
THE MOTHER’S CRIMINAL TRIAL
STATUTORY CONSIDERATIONS
PRIMARY CONSIDERATIONS
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b) FLA)
THE ADDITIONAL CONSIDERATIONS
Children’s views (s60CC(3)(a))
Relationships of the children with the parents and other persons (s60CC(3)(b))
Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s 60CC(3)(c), noting (s 60CC(4) and s 60CC(4A))
Likely effect of any change in the children’s circumstances (s60CC(3)(d))
Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))
The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))
The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))
If the children are Aboriginal or Torres Strait Islander (s60CC(3)(h))
Any family violence involving the children or a member of the children’s family or any family violence order (s60CC(3)(j) and(k))
Likelihood of order leading to further proceedings (s60CC(3)(l))
Any other relevant fact or circumstance (s 60CC(3)(m))
Is there an unacceptable risk that the mother is a flight risk?
EQUAL SHARED PARENTAL RESPONSIBILITY AND PARENTAL RESPONSIBILITY
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
CONCLUSION IN RELATION TO THE CHILD’S BEST INTERESTS
E/PROF F’S ROLE IN THESE PROCEEDINGS
PROPOSED ORDERS
A HOPE FOR THE CHILD’S FUTURE WITH HIS MOTHER
SCHEDULE 1 – ORDERS SOUGHT BY THE PARENTS AND THE INDEPENDENT CHILDREN'S LAWYER
Orders sought by father
(Orders sought in final submissions)
Orders sought by mother (case outline provided 10.12.13)
In the final oral submissions the mother sought further orders
Orders sought by the Independent Children's Lawyer
SCHEDULE 2 – DOCUMENTS REFERRED TO IN THE FINAL PART OF THE HEARING
Transcripts from the District Court (Exhibit 66)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 889 of 2008
Mr Tyler
Applicant
And
| Ms Sullivan |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The child D is now aged nine and a half years old. He was aged three and a half years old when the father filed the application and the mother filed her response which I am now determining. Throughout the whole of the intervening time, the child has been substantially without one of his parents in his life. Initially as a result of allegations of sexual abuse made by the mother against the father, the child’s face to face time with his father was restricted to seeing him at a contact centre. In April 2008 and prior to any final hearing, the mother took the child to Europe, secreting him from the father for two and a half years. When the child was found in Europe in September 2010 the mother was incarcerated and the child was placed in the care of the State. The child saw his mother on limited occasions before returning to Australia with his father in January 2011. The mother was extradited to Australia in March 2011 and remained in custody until early June 2011. The child did not have any face to face time with his mother until September 2011 and only then at a contact centre. That supervised contact continued until July 2013 when the contact centre withdrew its services after which time the child has not had any face to face time with his mother.
The central issues in this case are:
2.1.Whether or not there is an unacceptable risk that the child at the ages of two and three was sexually abused by his father, including whether the father involved the child in a paedophile ring in which the child was used as a sexual object;
2.2.Whether there has been and continues to be an unacceptable risk to the child posed by his father since he has been in his father’s care;
2.3.Whether there is an unacceptable risk that the child was otherwise physically and psychologically abused by his father;
2.4.Whether or not the mother has a serious psychotic illness.
The answers to these fundamental questions will have a significant bearing upon the outcome in this case.
In these Reasons, statements of fact constitute findings of fact.
ORDERS SOUGHT
The father seeks an order for sole parental responsibility to enable him to make major long term decisions in relation to the child, after first consulting with the mother and hearing her views. The father wishes the child to live with him and to have no face to face contact or other communication with the mother unless at some future point in time the father assesses that that is in the child’s best interests. The Independent Children's Lawyer agrees with the father’s position except would not wish to write into the orders the father’s ability to alter the orders. As I will later explain, given that neither the father or the Independent Children's Lawyer are asking me to make an order under s 64D(2) Family Law Act 1975 (Cth) (“the Act”), nothing turns on that distinction.
The father also seeks some consequential orders. The formal orders sought by the father at the final stage of the hearing are set out in Schedule 1 to the reasons. There is a difference between the father and the Independent Children's Lawyer as to how passports should be held and whether or not the father should be entitled to holiday overseas with the child in the twelve months after the date of these orders.
During final submissions the father withdrew his application pursuant to s 118(c) of the Act.
The mother seeks an order for sole parental responsibility for the child subject to notifying the father of a proposed decision and obtaining his views. She seeks that the child live with her. Up until the conclusion of her final submissions, she sought that the child spend fortnightly supervised time with his father, but then indicated “I want no contact, if that’s the best for [the child] and I – from an expert’s opinions of view and I want at maximum once a fortnight supervised, if that’s the best for [the child]. From a child sexual abuse expert’s point of view, a child development expert’s point of view.” The mother proposed that the child have phone contact with his father whenever he wishes. The mother wishes to hold the child’s passport and notify the court and the father concerning her intentions to travel overseas with the child. She also seeks an order that the father be restrained from discussing court proceedings with the child or any of his treating professionals or schools.
The mother did not advance any alternate proposal in circumstances where the child was to ordinarily live with his father. Dr R recommends, and the father and the Independent Children's Lawyer propose, no face to face time between the child and the mother. The child’s supervised time with the mother broke down in July 2013 and neither parent nor the Independent Children's Lawyer suggested it as a long term option.
The mother’s formal application is contained in Schedule 1 to these reasons.
The Independent Children's Lawyer’s formal application is contained in Schedule 1 to these reasons.
DOCUMENTS RELIED UPON
The documents relied upon are set out in Schedule 2 to these reasons.
SHORT HISTORY
The father was born in 1953 and is 60 years of age.
The mother was born in 1962 and is 51 years of age.
The parties commenced cohabitation in August 2003 and married in 2004.
The child D was born on in 2004 and is currently nine and a half years old.
On 6 December 2007 the mother formed the view that the child had been sexually abused by his father. She contacted a medical professional and child protection authorities. The mother had formed an unshakeable belief that the child had been sexually abused by the father.
The parties separated on 1 January 2008 and the child did not see his father until supervised contact took place on 25 March 2008.
In a letter dated 31 January 2008 the mother for the first time informed the father of the belief that she held.
On 29 February 2008 an order was made that the child have supervised time with his father at the C Contact Service and a Chapter 15 report was ordered.
On 23 April 2008 the mother received the Chapter 15 report.
In late April 2008 the mother removed the child from Australia.
On 6 September 2010 the child and his mother were located in City X; the child was taken into care and the mother was incarcerated.
In January 2011 the child returned to Australia with his father. The mother was extradited to Australia in March 2011 and remained in custody until 3 June 2011.
Between 17 September 2011 and 13 July 2013, the child had face to face time with his mother at a contact centre but he has not had face to face time with her since. Telephone communication has continued.
In late 2013 the mother was found guilty of an offence pursuant to s 65Y of the Act by a jury in the New South Wales District Court. Her sentencing hearing was due to commence in February 2014.
THE APPROACH IN CHILDREN’S CASES
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests. The relevant iteration of s 60CC of the Act is that which was introduced in May 2006 and relates to applications filed between 1 July 2006 and 7 June 2012.
The objects of Part VII of the Act (as expressed in s 60B(1)) are to ensure that 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
PRINCIPLES IN CASES INVOLVING ALLEGATIONS OF SEXUAL ABUSE
In M v M (1988) 166 CLR 69, the High Court said at pages 77,080 – 77,081:
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. [emphasis added]
The Full Court in Johnson & Page (2007) FLC 93-344 commented upon the principles emerging from M v M:
68.In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
69.Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:
Section 140
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
70.We think it useful at this point of our discussion to refer to the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 in discussing standard of proof
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. [footnotes omitted]
Although determined prior to the introduction of the Evidence Act the principles referred to by their Honours have been applied in decisions after the introduction of the Evidence Act (see Palmer v Dolman [2005] NSWCA 361. See also Odgers, S, Uniform Evidence Law, 7th ed, Lawbook Co., Sydney, 2006, at 673-674.)
71.We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
72.We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
73.We note that the trial Judge in paragraph 122 of his reasons referred to s 140 (2)(a)–(c), not to Briginshaw. We are satisfied in that paragraph of his reasons his Honour was summarising, in a general way, the principles set out in M and M and the standard of proof relevant to a positive finding of sexual abuse.
In Slater & Light (2013) 48 Fam LR 573 a subsequent Full Court referred to what was said in Johnson & Page with approval.
What the mother said about M v M & Briginshaw
The mother took some time during oral submissions discussing the High Court’s decisions in Briginshaw v Briginshaw (1938) 60 CLR 336 and M v M (1988) 166 CLR 69 (and particularly the comments made in M v M about Briginshaw). The mother submitted that statements made by the High Court in M v M to the effect that the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child, need to be revisited in light of the changes to the Act in 2006.
The mother thought that when M v M was decided in 1988, the need to protect the child from harm caused by abuse was subsection “g” in a list going down to “l” of matters to be considered. In fact, when M v M was decided, that matter was not specifically mentioned in the list of matters to be considered but the court was enjoined to “regard the welfare of the child as the paramount consideration” (the then s 60D of the Act). In 2006 the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence was elevated to one of two primary considerations, the other being the benefit to the child of having a meaningful relationship with both of the child’s parents. Although it does not apply in this case, in proceedings commencing after 7 June 2012, the need to protect the child is to be given greater weight than the benefit to the child of having a meaningful relationship with a parent.
The mother said:
Protection is now number 1. So in actual fact, the latest Family Law Act would suggest that you would need to investigate for any kind of abuse before you do any other sort of parenting assessment because protection is now number 1 to be considered and everything else comes after that. The law that existed at the time that our case started in 2008 put relationships and protection equally first, as I understand it, in assessing best interests.
In my view, the statements made and the test propounded by the High Court in M v M are not affected by subsequent and, in particular, the 2006 legislative amendments which did not change the court’s fundamental task. That task remains the same as it was in 1988. In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration (see also what Murphy J said in Donaghey & Donaghey (2011) 45 Fam LR 183 at [23]). In cases involving allegations of sexual abuse, findings relevant to those allegations have always been of great weight in the court’s determination of what is in the best interests of the child.
The other aspect of the mother’s submissions was that she challenged the way the High Court had applied Briginshaw. She made the point that Briginshaw was a case about adultery not child sexual abuse and whilst a finding of adultery against a woman in 1938 was serious, it paled against the seriousness of a finding relevant to child sexual abuse.
The mother spoke about the gravity of the consequences flowing from a particular finding in the context of such a case. The mother said:
.... it would be unjust to wrongly accuse [the father] of child sexual abuse. But the effect on [the child] of returning him to me and having no contact with [the father] .... would be beneficial, .... If [the father] was wrongly acquitted .... What you’re doing is subjecting a child to a legally binding relationship with a harmful parent. And that relationship will deny him his nurturing and protection for years to come, because you’re making him dependent on a harmful parent.
The power imbalance is extreme between the perpetrator and the victim of child sexual abuse. [The child] would be forced to submit and comply with inappropriate acts in return for loving and nurturing, not to mention the harm to his brain and his wellbeing. And I have said this before. He has suffered brain damage…
.... unlike the parties in Briginshaw, the consequences of wrongly acquitting a person who is sexually offending is far more serious.
The Full Court has on one occasion expressed the view that “[t]he risk that the Court will find heinous behaviour where none has occurred needs to be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate” (Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192).
This is the reason why the High Court in M v M have warned that there will be very many cases in which the court cannot confidently make a finding that sexual abuse has taken place and because such a finding would need to be made with the seriousness of the allegation in mind, positive findings against an alleged perpetrator are not the norm in parenting cases.
That said, I agree with the mother that an erroneous negative finding would be much worse for the child. Again, the High Court has said that there will be cases where the court has no hesitation in rejecting the allegations as groundless, but again these cases are not the norm.
That is why the High Court in M v M have set the test which has already been referred to:
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access (now a parenting order) to a person if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The decision about whether or not there is a risk and if so, whether that risk is unacceptable, cannot be made lightly and can only be made after substantial consideration of the facts in a particular case.
THE MOTHER AS A SELF REPRESENTED LITIGANT
The mother had various experienced family lawyers (both solicitors and barristers) represent her in these proceedings in the past. The mother told Dr R that she is “self-represented in all her hearings as her lawyers were ‘missing things’.” Her view was that she was best placed to represent herself because of her deep understanding of the facts of the case.
The mother told the lawyer for the father:
“you haven’t got the detail and the insight into the case to be able to deal with it properly. You’re looking in from the outside at a very superficial level. You’re running – how many cases are you running at once?”
The mother is intelligent and very articulate. She is a strong advocate in her own case. The mother has tertiary level qualification in marketing, allied health and science with majors in physiology and psychology. She has worked in business development and as a market manager in Europe as well as in Australia. She worked in management in a European country for eight years during which time she learnt German. She also worked for a time in a second European country. She has held positions as a marketing manager with a medical specialty company and at the time of the commencement of these proceedings, held the position of a senior product marketing manager for an international medical company. She told Dr W on 11 March 2001 that she was very satisfied with her job. Dr R records that the mother currently has medical certificates indicating that she is “under stress” and exempt from looking for work in connection with her Newstart Commonwealth benefit. In recent times the mother has been intensely engaged in the preparation for and conduct of litigation in three courts (these proceedings, her criminal trial and proceedings in the Supreme Court against Ms B, named electronic publishers and others associated with the publishing of the book). Because of the protracted nature of the course of the litigation (including the number of applications made by the mother), aided by some online law courses, the mother became proficient in filing applications affidavits and submissions and along the way learnt much about procedural rules, case law and appellate processes. Whilst the mother is not a trained lawyer, she has dedicated a large amount of her time (in recent times it has been her substantial focus) to litigation in which she has been involved. That has not only included these proceedings, but also the conduct of the mother’s criminal trial which involved her in attempting to raise two defences. In that process, she had the opportunity to cross examine the father over a five day period; Dr W over a two day period; the father’s psychologist/ the Independent Children's Lawyer; the lawyer for the father; the supervisor and the director of the contact centre; and ask questions of Emeritus Professor F (“E/Prof F”). The mother has been involved in a number of appeals to the Full Court (one of which was successful) and has made three special leave applications to the High Court. In choosing to represent herself, the mother has at certain times declined to avail herself of the grant of legal aid that might have otherwise been available to her. The history of the grant of legal aid is contained in Exhibit 93. The mother did not appeal the termination of legal aid on 9 January 2013.
The mother has been strategic in the way that she has presented her case (and at least on one occasion after she had read Dr R’s report twice, she corresponded with E/Prof F about strategy). Whilst I find that the mother had in her possession five audio recordings of conversations between the child and herself in Europe, she did not disclose the existence of four of these recordings until February 2014. The first time the court, the father and the Independent Children's Lawyer heard about them was when E/Prof F referred to them in a non-responsive answer to a question put to her by the Independent Children's Lawyer.
The mother told Dr R that she “was going to deal with it politically....writing to the Attorney-General, get the Family Court to change”. The mother told me she intends to work for change to the way child sexual abuse allegations are dealt with in the Federal/State system. She said:
....not perhaps in the Family Law Court, but outside of the Family Law Court to deal with this situation. So I’m working on those because it’s not just my son that has been harmed, but there are many women suffering – and some men – suffering with children
The mother’s absence in the second scheduled week of the final stage of the hearing
The mother failed to attend court on the morning of 17 December (the seventh scheduled day of the final phase of the hearing). Although an indication had been given to the mother that there would be a discussion during the week about an opportunity for her to give a Christmas present to the child, the mother decided to go to the child’s school on that morning to provide him with a present. She was due to cross examine Dr W on that day. She did not appear. Nobody knew where she was. She did not inform the court until later in the afternoon that she was not attending and that she was seeing a doctor. She saw a doctor on the following day and obtained a medical certificate in basic terms saying that she was suffering from stress and exhaustion and it covered the period from 17 December for one week. She emailed the certificate to the court on 18 December 2013.
On 17 December 2013 my associate forwarded an email to the mother informing her that the matter had been listed at 10am on 18 December 2013 and indicating that she should telephone the court room at 9.55am on that day. She failed to do so.
On 18 December I made the following order:
3.By 23 December 2013 the mother file and serve an affidavit explaining what she did on 17 December 2013 and on the morning of 18 December 2013 and an affidavit from any doctor upon whom she has attended on or after 17 December 2013 in which the doctor is to state:
3.1 The history given by the mother;
3.2 Details of the consultation and any examination of the mother;
3.3 Any opinion in relation to the mother’s health as at the time and date of the examination and/or consultation as to whether it would have been possible for the mother to:
3.1.1 Physically attend the court on 17 December 2013;
3.1.2 Make a telephone call to the court at 9.55am on 18 December 2013;
3.1.3 To participate in proceedings in court on 17 December 2013 and 18 December 2013;
3.1.4 The mother’s future ability to attend court and any opinion as to her prognosis generally;
3.1.5Details of any prescription or treatment provided to the mother and the purpose for which that prescription or treatment was given.
When I raised with the mother the fact that she had not complied with that order, the mother responded, “If you mean I should ask a doctor to write an affidavit, that’s your order, you ask him. I can’t ask my doctor to write something”.
THE FATHER’S QUALIFICATIONS
The father has completed a Bachelor degree and various post graduate management courses and has undertaken post graduate studies in Australia and the United States.
At the time of the commencement of these proceedings, the father was a senior public servant.
CREDIT
Mother
Despite the mother’s intelligence, for almost all of the time when she was questioned, the mother was unable to respond to simple questions with a simple answer. I formed the view that this was because the mother was fixated upon matters of precise detail associated with her view of the history of the matter and she was not prepared to provide a simple answer that would not precisely fit into her construct. This led her to often not answer the question that was being asked but give an answer referrable to the case theory that she had developed. The mother also appeared to be highly suspicious that any answer that she might give would then be used to her disadvantage in some way and consequently on multiple occasions sought to describe the context in which the question was relevant prior to providing any response to the actual question.
At the beginning of Dr R’s report under the heading “Current Concerns” and the subheading “Mother described”, Dr R records the mother saying, “[The father] did what he did”. The mother was reluctant to acknowledge that she had made that statement to Dr R but conceded that at some stage she probably said something like that. The mother was unable to accept that the “what he did” in her statement related to her belief that the father had sexually abused the child. She said that she would have to know the circumstance in which she made that statement to know what “what he did” meant. She indicated that she could have been talking about any behaviour of the father. This evidence by the mother was disingenuous and is symptomatic of the way in which the mother generally gave her evidence and is consistent with Dr R’s view of the mother’s mental disorder.
The mother has developed and honed her case. The mother has demonstrated a capacity to see when a particular part of her case theory is not viable and has consequently abandoned or subtly reframed it. The mother has also demonstrated a capacity to take a small fragment and weave it into her narrative in a way that takes that fragment out of context in a way that leads the mother to misunderstand it. A clear example of her doing that was during a disqualification application that she made on 26 September 2013 (see Exhibit 49 which is the mother’s submissions in that application). The mother’s application was based on an assertion that in [101] of my Reasons for Judgment dated 30 January 2013 (an interim decision), I had used the words “...Given that, based on this decision, [the child] will continue to live in his father’s care most of the time...”, the mother asserted that I had wrongly and unjustly said that the outcome of the final hearing would be based on the current interim parenting orders. I explain in my Reasons for Judgment dated 26 September 2013 that the words that the mother had focused on in the second sentence of [101] had to be read in the context of [90] to [102] of the Reasons for Judgment of 30 January 2013 (and in particular, the words as they are used in their context in [100] to [102] of the Reasons for Judgment of 30 January 2013). As I say in my reasons, a reasonable reading of the part of the sentence in the context of the whole sentence, its paragraph and the paragraphs surrounding it could not give up the meaning asserted by the mother and no reasonable reader would give it such a meaning.
There are occasions where the mother has been deliberately untruthful. For example, I find that the mother’s denial of elements of a conversation she had with Detective P on 15 January 2008 and her subsequent denial to Dr R that she had “never ever mentioned” anything about “gay people” to Detective P (when she told me she had) cannot be accepted as truthful. This is discussed below.
I discuss below the mother’s contradictory statements as to why she failed to comply with Order 5 made 25 November 2013.
The mother wrote in her written submissions for her appeal of the Hague proceedings:
The family Court Punish women severely for ‘fleeing’ to protect children. They do not take into account the reasons why women flee. Garry Watts the Judge adjudicating on my case for being in breach of Family Law 65Y (1) has a record of sentencing women to long prison terms. In many cases the original abuse allegations are never tried, instead the focus is on punishing the mother who fled.
In cross examination the mother confirmed she had written this document. When asked by counsel for the Independent Children's Lawyer when was the last time she was aware that I sentenced a woman to a long prison term where the abuse allegations were never tried, the mother said she was told this information by her criminal lawyer in City X. She said she believed that her criminal lawyer was telling her accurate information, and that she knew very little about the law in those days. The mother said that her criminal lawyer visited her in prison and actually showed her something with my name on it, a court decision that allegedly said I have sentenced women to long prison sentences.
As discussed, the mother incorrectly claimed Dr R fabricated evidence.
The objective records relating to the change in the child’s carer in June 2007 indicate that the father has a more reliable memory than the mother on that issue.
Absent corroboration by the mother’s criminal lawyer, I think what the mother is saying is inherently unlikely and that when she wrote her written submissions she knew she had no basis for the assertions she made in the appeal of the Hague proceedings. This does her no credit.
During cross examination by the mother of the father, the mother insisted that her evidence about the carer Ms MM ceasing to look after the child on 19 June 2007 and then immediately starting with a new carer, Ms KK, on 20 June 2007, was accurate. I have no doubt the mother believes her version to be true. The father gave a different version. The father’s different version is accurate when checked against what the mother wrote at the time and also against the records that were kept by the carers’ employer.
Father
The father answered questions in a straightforward manner and I was generally impressed with his demeanour.
There were some minor issues about the father’s candour. For example, the father initially asserted to Dr R that he had never been implicated in any problems in his organisation. The father later acknowledged to Dr R that he had been the subject of an internal investigation after the mother’s brother made a complaint that the father had been at the mother’s home whilst she was overseas. The finding was that there had been a breach of the code of conduct and the father was reprimanded, which reprimand was to remain on his file for six months. The father said that has been his only reprimand.
Conclusion in relation to the credit of the mother and father
On the whole, I find the mother has come to believe most of what she is saying is factually accurate. Unless a fact presented by the mother is uncontroversial or there is objective evidence to verify it or that fact is inherently likely, then I can place little weight on her evidence.
Unless I indicate otherwise because of other objective evidence or that a particular fact asserted by the father is inherently unlikely, where there is a direct conflict between the mother and father about a particular fact, I prefer the evidence of the father.
MORE DETAILED CHRONOLOGY
The father was born in 1953 and is 60 years of age.
The mother was born in 1962 and is 51 years of age.
The parties commenced cohabitation in August 2003 and married in 2004.
The parties commenced cohabitation in August 2003 and married in 2004.
The child D was born in 2004 and is currently nine and a half years old.
It is noted in Dr W’s report that the mother returned to work on a part time basis when the child was about 12 months of age. She increased her hours fairly rapidly and for nearly two years as at April 2008, had been working four days a week.
On 6 December 2007 the child communicated with his mother in a way that led the mother to believe that he had been sexually abused by his father.
On 7 December 2007 the mother took the child to see a doctor. She also spoke to a Child Protection Unit.
On 10 December 2007 the child attended a Joint Investigation Response Team (“JIRT”) interview. On the same day, the mother had the child examined by a dentist and a doctor.
On 22 December 2007, for the first time in their relationship, the father disclosed to the mother that he had anxiety issues and depression and that he took medication.
The parties separated on 1 January 2008 and the child lived with his mother. The child did not see his father.
The mother stayed with her brother and sister-in-law for about a month after separation until the mother obtained secure rental accommodation.
Up until the end of January 2008, the mother had only obliquely revealed to the father the nature of her concerns and she had not told him that the child had been interviewed by JIRT on 10 December 2007.
On 18 February 2008 the father commenced proceedings in this court seeking sole parental responsibility for the child and for the child to live with him.
On 28 February 2008 the mother filed a Notice of Child Abuse or Family Violence.
On 29 February 2008 I made orders which, amongst other things, ordered that the child spend time with the father supervised by C Contact Centre for seven visits each fortnight pending the matter returning to the court. I made an order that Dr W be appointed as an independent expert pursuant to Chapter 15 of the Family Law Rules 2004 (Cth) (“the Rules”).
On 11 March 2008 Dr W conducted interviews with each parent and briefly observed each parent play with the child.
On 25 March 2008 the father commenced contact sessions with the child.
Dr W’s report was completed on 3 April 2008 and was subsequently released to the parties on 10 April 2008, but I accept that because she had changed lawyers, the mother did not receive Dr W’s report until 23 April 2008. There was a scheduled listing of the case before me on 5 June 2008. Amongst other things, Dr W in his report made a recommendation that the number of occasions that the child see his father at the child contact centre pending the final hearing be reduced from seven per fortnight to four per fortnight.
In late April 2008 the mother removed the child from Australia.
On 7 May 2008 Judicial Registrar Johnston (as his Honour then was), made ex-parte orders that the child live with the father.
On 27 May 2008 Dr W wrote a letter to the Independent Children's Lawyer.
On 5 December 2008 the court made a publication order which gave the father leave to publish the mother’s and the child’s names, a photo and any other fact or circumstance that may assist in the recovery of the child. A further order was made requiring the publication of the information to be accompanied by a warning that any person recognising the mother or the child should not approach the mother and should report the recognition of the mother and/or the child as indicated in the publication. The purpose of publishing a warning of that nature arose from what Dr W had written in his letter of 27 May 2008.
On 11 June 2009, the NSW Police issued a warrant under the Criminal Procedure Act 1986 (NSW) for the arrest of the mother in relation to the mother’s alleged offence under s 65Y Family Law Act 1975 (Cth).
On 6 September 2010 the mother was arrested in City X and thereafter remained in custody until 22 November 2010. She was under house arrest in European Country XX until 3 December 2010, when she was placed back into custody after the appeal of her bail.
Between 6 September 2010 and 6 December 2010, the child was in a Country XX child protection facility. During that time, the child spent time with his father and City X Youth Crisis Agency took the child to see his mother in prison about once each week.
On 27 October 2010 an application was made to the State Central Authority in Country XX for the return of the child to Australia.
On 30 November 2010 a Hague Convention hearing was conducted in Country XX. An order was made requiring the child to return to Australia. The mother appealed that decision.
The child was released into his father’s care in Country XX on 7 December 2010. City X Youth Crisis Agency continued to take the child to see his mother in prison once each week.
On 14 December 2010 the appeal court in City X dismissed the mother’s appeal and ordered the child to be returned to Australia pursuant to the Hague Convention.
The father and the child returned to Australia on 25 January 2011 and the child has lived with his father since that time.
Certain other ancillary orders which have been suggested by the Independent Children's Lawyer are generally in the child’s best interest and I will make them generally in the terms sought.
A HOPE FOR THE CHILD’S FUTURE WITH HIS MOTHER
I understand the mother will not be able to accept my findings at this time and that she believes I fit into a profile of judges which she thinks exist in the Family Court, who brand as “mad”, mothers who make sexual abuse allegations against fathers of their children. Although it may be a pious hope, there might come a time when the mother is able to understand that the task I have undertaken has involved a careful and detailed examination of all the evidence that I have in this particular case with its particular history. I have found that the mother has a mental illness. It needs to be treated. It cannot be treated until the mother concedes she could have been wrong. The road back to the child having a relationship with her depends on her genuinely gaining that insight and then obtaining professional assistance.
I certify that the preceding nine hundred and seventy-four (974) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 26 March 2014.
Associate:
Date: 26 March 2014
SCHEDULE 1 – orders sought by the parents and the Independent Children's Lawyer
Orders sought by father
(Orders sought in Section C of the father’s case outline)
That all previous parenting orders be and are hereby discharged.
That D (“the child”) born … 2004 live with this father.
That the child’s father have sole parental responsibility for the child.
That the child spend time with his mother as determined by his father.
That the court note the undertaking of the father (to be given) that he will at all times consider the views of the child in relation to his desire to both communicate with and to spend time with his mother.
That the respondent mother be and is hereby restrained by injunction from instituting any proceedings under Part VII of the Family Law Act in relation to the child without the leave of a judge of the Family Court of Australia.This was not pressed at final hearing.That the father have leave to publish:
(a)Reasons for Judgment and Final Orders in respect of this final hearing; and
(b)The report of Dr R.
That prior to exercising any significant issue of parental responsibility (such as, and including but not limited to, educational arrangements for the child, medical arrangements for the child), the father notify the mother of the particular issue of parental responsibility and consider the views and opinions of the mother.
That the court note that the power conferred by order 3 upon the father extends to being the sole authority for the issue of a passport for the child.
That notwithstanding order 12 below, the father have the permission of this court to remove the child from the Commonwealth of Australia for the purposes of a holiday of up to six weeks at a time.
That the court notes the undertaking (to be given) of the father that he will provide details of the holiday itinerary to the mother.
That the child, D, remain on the Family Law Watch List at all points of international departure from this jurisdiction until 19 August 2020.
(Orders sought in final submissions)
The father opposed any order replicating or augmenting the provisions of s 121 of the Act and any approval of publication.
The father sought an order that the mother shall be restrained from approaching or communicating with the child’s school and/or the child’s treating health professionals.
Orders sought by mother (case outline provided 10.12.13)
That all previous orders be and are hereby discharged.
That D (“the child”) born … 2004 live with his mother.
That the child’s mother have sole parental responsibility for the child.
That the child spend fortnightly supervised time with his father. During final oral submissions the mother said she would only agree to this if she could get the opinion of a child abuse expert as to whether supervised time should happen and how much of it would be in the child’s best interests.
That the child have phone contact with his father whenever he wishes.
That the father be restrained from discussing the court proceedings with the child or any of his treating professionals or schools.
That the mother and the child be permitted to hold passports and normal travel documents.
That the mother notify the court and the father concerning any intention to travel with the child.
That the mother notify the father concerning any long term arrangement concerning the child’s parenting to obtain his views.
In the final oral submissions the mother sought further orders
The mother was agreeable to the child remaining on the watch list.
The mother sought an order be made which replicated or augmented s 121 of the Act.
If the child lives with the father, the mother seeks access to and the ability to have direct discussions with any person who is providing treatment or professional services to the child and his school teacher and school principal.
That the mother be permitted to show medical records on the father’s mental health.
That if the child lives with the father, the father seek assistance from health professionals at AA House to discuss with the child the proceedings and history of what has occurred.
Orders sought by the Independent Children's Lawyer
Counsel for the Independent Children's Lawyer announced at the commencement of the hearing that the Independent Children's Lawyer’s preliminary position was to support the recommendations contained in Dr R’s report dated 19 November 2013, which were as follows:
Recommendations:
The child continues to live with his father.
The child has indirect contact with his mother, with the child being able to telephone or Skype her when he requests to do so.
The child’s mental health continues to be monitored by his treating clinicians.
An end to litigation involving the child and his father until the mother has had treatment for her mental disorder and is able to accept the child has a genuinely positive relationship with his father.
At the final stages of hearing, Counsel for the Independent Children’s Lawyer tendered a proposed minute of order in the following terms: -
That all previous parenting orders be and are hereby discharged.
That D (“the child) born … 2004 live with his father.
That the child’s father have sole parental responsibility for the child.
That the child spend no face to face time with the mother.
That the mother may communicate with the child only by posting letters, cards and/or gifts to a mailing address nominated by the father and advised to the mother, for the child’s birthday, for Christmas and other special occasions and the father shall provide those to the child subject to the father’s inspection and approval of those communications.
That the father have leave to provide a copy of the report of Dr R and orders of this court to any of the child’s treating health professionals or to his educational providers in the discretion of the father.
That the mother have leave to provide a copy of Dr R’s report and a copy of these orders to any of her health care professionals if she so desires or the health care professional requests it.
That the court note that the power conferred by order 3 upon the father extends to being the sole authority for the issue of a passport for the child.
Notwithstanding order 11 below the father have permission of this court to remove the child from the Commonwealth of Australia for the purposes of a holiday of up to six weeks at a time provided that such holiday not commence within 12 months of the making of these orders.
That the father provide details of any overseas holiday itinerary to the mother within seven days prior to their departure.
That the child, D, remain on the Airport Watch List at all points of international departure from the Commonwealth of Australia until 19 August 2020.
That the father shall authorise any school that the child may from time to time attend to provide copies of the child’s school reports to the mother.
That the father shall notify the mother of:
a.Any change of his mailing or e-mail address within 72 hours of such change occurring;
b.Any serious illness or serious injury suffered by the child as soon as reasonably practical after the accident or injury occurs. For the purpose of this order a ‘serious illness or serious injury’ means an illness or injury that requires the child to be admitted to hospital or if the child is absent from school for more than 5 consecutive school days;
c.Any change of the child’s school within 72 hours prior to such change.
That the father shall provide to the mother recent photos of the child at least once per month and to that end the mother shall provide to the father her current mailing and email address.
That the father and mother shall be restrained from discussing with or putting in writing to any third parties information about their Court proceedings and/or allegations involving the child and/or the mother and/or the father and shall not permit them to do so, including publishing information on the world wide web, in print or via email or any other form of written communication other than for the purpose of undergoing treatment with their or the child’s treating health professionals, of obtaining legal advice and/or as otherwise provided for in these Orders.
That the father shall forthwith obtain advice and the involvement of the child’s treating health professionals and shall follow all recommendations for those health professionals so as to explain these Orders to the child and to address the child’s questions and any matters that may arise in relation to these Orders and/or the child becoming aware of or discovering information about himself in relation to these or any other Court proceedings and/or allegations involving himself and/or his parents.
Notwithstanding any other Order, that the mother shall be restrained from approaching or communicating with the child’s school and/or the child’s treating health professionals.
SCHEDULE 2 – DOCUMENTS REFERRED TO IN THE FINAL PART OF THE HEARING
The applicant father relies on the following:
1.1.Initiating Application filed 18 February 2008
1.2.His affidavit sworn 2 December 2013
1.3.Expert Report of Dr W dated 10 April 2008
1.4.Expert Report and Addendum of Dr R undated at exhibit 49
1.5.Chronology as determined by this Court at exhibit 48
The respondent mother relies on the following:
2.1.Response filed 28 February 2008
2.2.Her affidavit sworn 6 December 2013
The mother indicated on the second day of the final stage of the hearing that she wished to strictly confine her evidence in chief to that evidence which is contained in the affidavit which she filed late on the last working day before the commencement of the hearing (6 December 2013). Notwithstanding the fact that that affidavit in a number of places refers to two previous affidavits filed by the mother (affidavits filed 28 February 2008 and 15 November 2011), the mother did not wish those two affidavits to be part of the evidence before the court in her case in chief and references to those affidavits in the affidavit filed 6 December 2013 were not read by her. Some parts of those affidavits were referred to in oral evidence. I otherwise have those affidavits before me for the limited purpose of knowing what material Dr R has read.
The Independent Children’s Lawyer relies on the following:
3.1.Expert Report of Dr W dated 19 April 2008 (Exhibit 53)
3.2.Dr W’s letter to ICL dated 27 May 2008 (Exhibit 52)
3.3.Expert Report and Addendum of Dr R (Exhibit 49)
3.4.Affidavit of the father sworn 2 December 2013
3.5.Affidavit of the mother sworn 6 December 2013
3.6.Notice of Child Abuse filed by the father 18 February 2008
3.7.Notice of Child Abuse filed by the mother 28 February 2008
3.8.Notice of Child Abuse filed by the mother 30 March 2012
A large amount of material was tendered and made exhibits during the final stage of the hearing. (Exhibits 45 – 120). Exhibit 95 is five binders of material sent to Dr R from subpoenaed material. In addition, Dr R had copies of some documents filed by the parents in court during the time these proceedings have been before me. Because they included 49A, there is one more exhibit than the numbering would suggest (as noted in the hearing, Casetrack exhibit numbers after and including exhibit 49 are one number advanced (exhibit 49 has a Casetrack exhibit number E50).
Transcripts from the District Court (Exhibit 66)
During the mother’s criminal trial, the father gave evidence in chief and was cross examined by the mother; Dr W gave evidence in chief and was cross examined by the mother; the mother gave evidence and was cross examined by the Crown; the mother made a closing address to the jury. All parties agreed that transcripts in respect of those parts of the mother’s criminal trial could form part of the material before me in this hearing, as all thought that doing so might shorten the time taken in this court to cross examine the witnesses.
I also admitted into evidence the evidence given by E/Prof F in the District Court both on the voir dire and in chief.
Relevantly, the mother and the father gave evidence before me and were cross examined and Dr R and E/Prof F gave evidence before me and were cross examined. Dr W was available on two occasions to give evidence (the first occasion being 17 December 2013 when the mother did not attend court; the second occasion was 18 February 2014 which had also been set aside for Dr W to give evidence but on 17 February 2014 the mother, the father and the Independent Children's Lawyer all indicated that they did not wish to ask Dr W any further questions).
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Statutory Interpretation
Legal Concepts
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Appeal
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Jurisdiction
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Natural Justice
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Procedural Fairness
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