Udall and Oaks (No 2)
[2015] FamCA 1101
•10 December 2015
FAMILY COURT OF AUSTRALIA
| UDALL & OAKS (NO. 2) | [2015] FamCA 1101 |
| FAMILY LAW – CHILDREN – Best interests of the child – Parental responsibility – Where the parents have been in dispute for much of the child’s life – Where the child lives with the father and has not spent time with the mother for two years – Chapter 15 expert opinion – Issue of abuse and/or neglect by each parent – Issue of the father alienating the child from the mother – Unacceptable risk of harm – Expert opinion that the child live primarily with one parent and have very limited or no contact with the other – Short term or long term risks to the child in the parenting proposals – Meaningful relationship – Need to protect the child from harm, particularly risk of serious psychological harm very significant – Likely effect of a change in circumstances – Parental capacity – Family violence – Where parental responsibility to be exercised by the parent with whom the child is to live – Determination that it is in the best interest of the child to live with the mother and associated orders. |
| Evidence Act 1995 (Cth) s 140. Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61C, 61DA, 65DAC. |
| Bant & Clayton [2015] FamCAFC 222. |
| APPLICANT: | Ms Udall |
| RESPONDENT: | Mr Oaks |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Layson |
| FILE NUMBER: | PAC | 134 | of | 2009 |
| DATE DELIVERED: | 10 December 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 28, 29, 30 and 31 July 2015 and 17, 18, 19, 20 and 21 August 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dart |
| SOLICITOR FOR THE APPLICANT: | Legal Aid NSW |
| COUNSEL FOR THE RESPONDENT: | Ms Obradovic |
| SOLICITOR FOR THE RESPONDENT: | Harb Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cairns |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Layson of Sarah Bevan Family Lawyers |
Orders
All previous parenting orders are discharged.
The mother have sole parental responsibility for D born … 2004 (“D”).
The child, D, live with the mother.
The child, D, spend no time with the father until he turns 16 years old.
From D’s 16th birthday, he spend time with the father once per fortnight for a period of up to three hours on each occasion at a location proximate to where the mother may live from time to time.
Pursuant to section 68B of the Family Law Act 1975, the father is injuncted from:
(a)Communicating, or attempting to communicate, with D by any means whatsoever, including but not limited to communication via telephone, video chat, email, social media, and/or letter until D reaches the age of 16. From the date of D’s 16th birthday onwards, such contact is only to occur if initiated by D.
(b)Communicating, or attempting to communicate, with D through a third person by any means whatsoever until D reaches the age of 16. From the date of D’s 16th birthday onwards, such contact is only to occur if initiated by D.
(c)Encouraging, allowing, causing, permitting or otherwise acquiescing to D entering the father’s care and/or control. This includes, but is not limited to, allowing, causing, permitting or otherwise acquiescing to D entering into any residence where the father may live or otherwise be present other than when the father is spending time with D pursuant to Order 5.
(d)Causing, permitting, encouraging or otherwise inciting any person including any member of his family from approaching D, communicating with him or otherwise taking D into their care or control without the prior agreement of the mother.
(e)Filming or photographing D and/or the mother or otherwise having them placed under any form of surveillance or monitoring.
(f)Approaching within 250 metres of:
(i)D, unless otherwise permitted by these Orders or agreed between the parties in writing;
(ii)The mother;
(iii)Any home where D may from time to time reside;
(iv)The school, church or other institution at which D may from time to time attend; and/or
(v)The location of D’s sporting or extracurricular activities from time to time.
The injunctions provided for in Order 6 are made for the personal protection of D and the mother. The power of arrest without warrant pursuant to section 68C of the Act attaches to the injunctions provided for in Order 6.
Pending further order, each party and their agents are restrained from removing or attempting to remove or causing or permitting the removal of the child D born … 2004 (a male), from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the child reaches the age of 18 or the Court orders its removal.
Pursuant to Section 65Y(2)(b) that the mother be permitted to remove D from the Commonwealth of Australia.
Within 48 hours of these Orders being made, the father must surrender all passports held by or on behalf of him in D’s name to the mother’s solicitor for release thereafter to the mother.
Pursuant to section 11(1)(b) of the Australian Passports Act 2006 (Cth) the mother is permitted to apply for the issue of an Australian passport and any renewal of same for D without the consent of the father being obtained.
D’s name be suspended from the Airport Watchlist for such time that he is to travel overseas provided that he is accompanied to and from Australia by the mother, with the mother to notify the Australian Federal Police of her travel plans in advance of her departure, together with the provision of an itinerary.
In the event the mother is required to bring a travel application in order to have D’s name suspended from the Airport Watchlist, that application may proceed without notice to the father and ex-parte unless otherwise determined by the presiding judicial officer.
Immediately upon the making of these orders, the mother must make contact with Dr B for the purposes of engaging Dr B to provide therapy to herself and D or if Dr B declines to provide therapy the mother is to engage any other suitable therapist as recommended by Dr B. In the event that Dr B agrees to provide therapy that is to commence as soon as practicable. Thereafter the mother is to follow all recommendations and directions of Dr B including engaging D with other health or mental health professionals or therapists. In the event that D engages with another health or mental health professional or therapist, the mother must then also follow all recommendations and directions of that professional.
Within 48 hours the Independent Children’s Lawyer shall provide:
(a)These orders;
(b)The reasons for judgment; and
(c)The single expert report of Dr C
to the Department of Family and Community Services with a request that these documents be considered as part of any child protection investigation with respect to D.
The Independent Children’s Lawyer shall forthwith provide to the principal of P Public School, and the mother is at liberty to thereafter provide to the principal of any subsequent school at which D is enrolled:
(a)These orders; and
(b)The reasons for judgment.
Within 48 hours the Independent Children’s Lawyer is to provide:
(a)A copy of these orders; and
(b)A copy of the reasons for judgment
to the Officer in Charge of the … Local Area Command of the NSW Police together with a written request that consideration be given to such documents as part of any criminal complaint made by, or in relation to, D and that Police provide such assistance as deemed appropriate by them from time to time to give effect to these Orders.
The mother shall promptly provide to all health professionals or therapist upon whom D attends:
(a)These orders;
(b)The reasons for judgment;
(c)The expert report of Dr C; and
(d)If engaged within 12 months from the date of these orders, a direction and authority to the professional to contact the Independent Children’s Lawyer if that professional wishes to discuss any aspect of these proceedings.
The appointment of the Independent Children’s Lawyer remains in force for a period of 12 months from the date of these orders.
Any contravention Application and/or Recovery Order application filed by the mother within 12 months of the date of these orders be listed on short notice and before Justice Hannam, and if she is not available, the first judicial officer reasonably available.
The father and any other persons attending with him at the Court other than the child are to leave the Court Registry and the Court precincts immediately following the delivery of this judgment.
Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Udall & Oaks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 134 of 2009
| Ms Udall |
Applicant
And
| Mr Oaks |
Respondent
REASONS FOR JUDGMENT
Introduction
The child D (“the child”), who is 11, lives with his father and has no relationship with his mother. Although there have been orders in place since July 2012 for the child to live with his mother five days per fortnight, he has not done so since September 2013. The mother relies upon the expert evidence of a psychologist who says that the child is alienated from the mother and seeks orders that the child live with her and spend no time with his father until the child is 16 years old.
The child’s father does not accept that the child is alienated from his mother. It is essentially his position that the child has chosen to not spend time with his mother for good reason. He is concerned about the risks of harm to the child which have been identified by the psychologist if the child were to be moved to the mother’s care. He proposes that the child continue to live with him and spend time with his mother in accordance with the child’s wishes or at defined times.
The Independent Children’s Lawyer (ICL) submits that orders largely in line with the mother’s proposal are in the child’s best interest.
In this matter the stakes are very high for the child. The history of the child’s parenting in recent years and the expert opinion is that each of the parents’ proposals will result in the child only having a relationship with the parent with whom he lives. Short term and long term risks to the child have been identified by the psychologist in both parenting proposals. The question for me to determine is which of the proposals is in the child’s best interest.
background
History
The father Mr Oaks (“the father”), who is 63, is of Spanish or South American heritage. In his affidavit, he states that he was born in Spain in one paragraph and South America in another. His family migrated to Australia when he was 19 and he lived in Sydney for many years. He was previously married to Ms Z for 15 years but there were no children of that relationship.
The mother Ms Udall who is in her early 40s (“the mother”), was born in South America. She had difficult childhood which included being the victim of a terrorist attack at the age of seven, in which she was seriously injured. She has an older child, J, who was born in South America and is currently aged 21.
The parents met in 2001 or 2002 in Spain where they were both living and began living together in late 2002.
D, the only child of the parents’ relationship, was born in mid 2004. At some point the mother went to South America to collect her son J and brought him to Spain to live with her, the father and the child D.
The parents decided to move to Australia. The father says that the reason for this move was “so that [he] could access a disability pension” which was not available to him in Spain. The father arrived in Australia first with D in December 2007, and the mother and J followed thereafter. Initially they all lived with the paternal grandparents.
Subsequently, the family obtained their own premises in Suburb P and when he reached school age the child was enrolled in a local public school.
At the beginning of 2009, the parents separated and shortly before commencing school the child began living with the father in a home unit that the father had purchased in the Suburb P area. There is a significant dispute between the parties about the circumstances of the separation and the child coming into the care of the father.
The first proceedings: parenting orders October 2010
Within three days of separating in January 2009 the mother commenced parenting proceedings and interim orders were made for the child to spend time with her.
From February 2009 each of the parents says that the child made complaints about the abusive conduct of the other parent. The father also alleges the child complained of abuse by the child’s half-brother J.
On 15 May 2009 further orders were made for the mother to spend time with the child every weekend and for the mother, the child and his half-brother J to attend family therapy with Mr G, a family therapist. From around mid-2009 changeovers occurred at a contact service and it appears that subsequently changeovers occurred at a police station.
In February 2010 Dr R, the Court appointed expert, interviewed the parties.
Events following the first hearing
Following a contested hearing in the Federal Magistrates Court, as that Court was then known, on 22 October 2010 final parenting orders were made. Under these orders the parents were equally to share parental responsibility for the child who was to live with his mother and to spend defined time with his father. There were other ancillary orders, including that family therapy be provided by Dr B. The purpose of this therapy was to assist the child in adjusting from the change from his father’s care to his mother’s care.
From around this time the mother formed a relationship with Mr O, whose wife had died some years earlier. Although the mother and Mr O have not ever lived together, Mr O had involvement with the child over a number of years including taking him to activities such as athletics and soccer.
In November 2010 the father lodged an appeal against the final parenting orders, but the orders were not stayed. The child continued to live with his mother and spend time with his father in accordance with the orders.
From January 2011 to July 2011 the mother experienced a number of difficulties with the child’s behaviour. He was oppositional and verbally abusive to her and would become enraged for no apparent reason though he would subsequently apologise to her. The mother sought assistance with the child’s behaviour from Dr B.
In October 2011 the father’s appeal was allowed and the matter was remitted for rehearing to the Federal Magistrates Court. The child continued to live with his mother, though the October 2010 orders were discharged.
In June 2012 the family were assessed by a family consultant for the purposes of a Family Report. The retrial of the parenting applications was listed to commence on 11 July 2012.
On 2 July 2012, the child, who was then eight, ran away from his mother’s home. He was found crying and distressed by a person unknown to him in a street in Suburb P.
The retrial and July 2012 parenting orders
The July 2012 trial did not proceed to hearing as the parties were able to reach agreement. On 12 July the parties consented to orders being made under which the parents were to share parental responsibility, the child was to live with his father nine days per fortnight and with his mother five consecutive days per fortnight and equally with each parent during the school holidays. The mother was to collect the child for changeover from his school each alternate Wednesday and the father was to collect the child from school or from an alternate location on a non-school day. Orders also restrained the parents from being in the physical presence of the child, communicating with him or attending extra-curricular activities and the child’s school (other than for particular events) while he was in the care of the other parent. The parents were also restrained from discussing the court proceedings with the child or allowing or encouraging any other person to do so, other than Dr B or the ICL. Dr B was to continue working with the family and each parent was required to do all things necessary to facilitate the child’s attendance upon her for the purposes of family therapy.
On 5 September 2012 the father told the ICL and Dr B that he no longer wished for Dr B to be involved in providing therapy to the child.
The mother participated in numerous therapy sessions with Dr B after September 2012 and on four occasions Dr B saw the mother and the child together. The father did not participate in any further therapy with Dr B.
The father unilaterally engaged another psychologist, Ms W, for the child from November 2012. The father did not inform Dr B, the ICL or the mother of this engagement.
In February 2013 police applied for an Apprehended Domestic Violence Order (ADVO) for the child’s protection against the mother on the basis of information that the child and the psychologist Ms W had apparently reported to the father, which the father and Ms W provided to police. An interim order was made but in May 2013 the application was withdrawn by police.
The child spent time with his mother in accordance with the July 2012 orders during school terms and for half the school holidays in July 2013.
On 11 September 2013, the first of a five day period when the child was living with the mother, there was a fire at the mother’s apartment block. The mother and the child were evacuated in the early hours of the morning. The child and his mother then went to stay with a friend and the child attended school as usual on the Thursday and Friday following the fire. The child remained with his mother during the weekend, attended school on Monday 16 September and was collected by the father after school on that day.
Events after the fire
On 19 September the father informed the mother in an email that “am not give you [D] (sic)” because of adverse health effects he alleged that the child had suffered from the fire.
Pursuant to the July 2012 orders the child was due to spend time with his mother for the first half of the September school holidays which commenced on 20 September 2013. On that date the child was not at school when the mother attended for changeover. The child did not spend any time with his mother in this school holiday period. The issue of the father’s actions relating to the July 2012 orders after the fire and generally is dealt with later in these Reasons.
From the commencement of term 4 in 2013, the mother attended at the school for changeover on each of the days that the child was due to come into her care, but on each occasion that did not occur. There are a number of events in dispute associated with the father’s attendance at the school during this school term and subsequently which are dealt with later in these Reasons.
From November 2013, the mother sought to have the father comply with the court orders by instructing her solicitor to write to the father. The steps taken by the mother including arranging a family dispute resolution conference are dealt with later in these Reasons.
The mother did not spend any time with the child during the Christmas school holiday period in December 2013-Janaury 2014.
At around the commencement of the school year in 2014 the mother was hospitalised and underwent surgery. When she recovered from the surgery she once again commenced attending the child’s school to collect him in accordance with the orders, but the child was collected on each occasion by his father rather than passing into the care of his mother. The child did not live the mother in accordance with the orders during the school term or any of the school holiday periods throughout the balance of 2014.
On 17 April 2014 the parties participated in a Family Dispute Resolution conference but no agreement was reached. In May 2014 the mother commenced these proceedings.
On 30 October 2014 a Chapter 15 Expert, Dr C, was appointed. Dr C interviewed the family members for the purposes for her assessment in December 2014. The expert report was released on 10 March 2015.
In January 2015 the father commenced a new relationship with Ms E.
In 2015 the mother continued attending the child’s school for changeover in accordance with the July 2012 parenting orders. The father continued to be present at the school on each changeover day and from at least March 2015 the father’s partner also regularly attended with him.
The father and his partner were married in mid 2015, shortly before the proceedings commenced. The father, his wife and her 13 year old daughter live with the child in the father’s household.
The child has not spent any time with his mother in accordance with the orders since September 2013.
Expert Evidence
Dr C, a clinical psychologist, was appointed as the Single Expert in the proceedings. Dr C has completed a Bachelor of Psychology graduating with first class Honours, a Master of Clinical Psychology with Honours and a Doctor of Clinical Psychology. She has held a range of positions as a clinical psychologist for almost fifteen years, has published numerous articles and presented at many conferences. She has a particular interest in a number of topics including children resisting contact with a parent. Dr C’s report followed interviews with each of the parents alone and with the mother’s partner and she interviewed the child and conducted a joint observation with each of the parents and the child. She read affidavits filed at that stage by the parties and had access to documents produced under subpoena by the NSW police, the Department of Family and Community Services and the child’s school.
Dr C described the child’s presentation as “highly characteristic of children who have been alienated from a parent”. She said these children:
…frequently develop rigid, automatic and inflexible views of a parent and often describe one parent as “all good” while describing the other parent as “all bad”. These children usually appear cruel and indifferent and do not display ambivalence. In contrast, when children have been subject to often quite significant abuse they are usually more ambivalent in their expression of feeling towards the perpetrator, often quite protective of that parent and almost always able to describe at least neutral attributes of that parent’s behaviour.
Initially in the report the doctor wrote that she thought that the child’s views must be considered in light of the “possibility” that they reflect the views of an alienated child. Later in her report Dr C described the child’s relationship with his mother as “highly fractured”. She also went on to say that it was her view that the child had been “systematically alienated from his mother”.
Dr C described the nature of the child’s relationship with his father as unusual and that the father appeared to be a calm, passive and indulgent parent. However, she said that the child also appeared to “firmly acquiesce to his father’s views on various other matters” and the child described his father almost perfect, which she said is “most unusual” in a child of his age. The doctor opined that the source of the child’s loyalty to his father was unclear and could be a result of the child’s fear if it were the case that the father was found to be an authoritarian, harsh and brutal parent. The other alternative is, in the doctor’s opinion, that the child’s extreme loyalty “may be an artefact of his coping mechanism in the face of the high degree of conflict between his parents.” She said:
For some children, “splitting”, a mechanism by which a child adopts the view of one parent and rejects the other parent, is the only means available for coping with ongoing hostility on a long-term basis. It could be the case the [the child’s] hyper-loyalty is a splitting mechanism.
The doctor also identified some other concerning aspects about the child’s relationship with his father including that there was “an extremely high degree of similarity between the words and vocabulary used by [the child] and his father” when describing a particular event and said their views and expression could be described as “merged”. She also observed that the father is highly present in the child’s school life and historically in other aspects of the child’s life to such a degree that suggests to her that the father is “highly controlling and needs to be ever-present in [the child’s] life”. She expressed the view that the father “has an extraordinary lack of insight into the degree to which he is controlling [the child] and the degree to which this control impedes his capacity to have independent relationships with others, most particularly with his mother”.
The doctor expressed some lack of certainty about the nature of the child’s relationship with his mother. She described the child’s behaviour and affect towards his mother as “contemptuous and hostile”.
The doctor was extensively cross-examined about her opinion that the child has been systematically alienated. She maintained her opinion that the child is “very much” an alienated child. The doctor stood by her opinion that the features of the child’s presentation were consistent with alienation including the cruel and flat manner in which he expressed his intense dislike of his mother and her partner and his incapacity to answer questions beyond “parrot or rote-like phrases that were repeated endlessly”. She confirmed that when children have experienced genuine significant abuse they’re usually far more ambivalent and often quite protective of the abusive parent.
Dr C elaborated upon the characteristic of “splitting” seen in alienated children and said:
Splitting is a sort of psychological concept that means that it has become so intolerable for the child to, so to speak, occupy the space between the parents, to sit with the discomfort of…awful allegations from one parent to another and ugly…views expressed and..[in] my view..very coercive, controlling behaviour on behalf of the father, ultimately, a child can no longer tolerate that so they do choose sides, and they do so with the resources they have available to them. So that’s my summation of [the child’s] presentation.
Dr C later explained that the child may have “simply chosen the side of the person who is more difficult to object to” but continued to describe the child’s loyalty to his father as “extremely odd”.
Dr C’s opinion that the child has always been alienated emerged in the course of cross-examination. The doctor identified in the Family Report prepared in June 2012 that the family consultant considered that the child could be exhibiting alienated behaviour but was not of the opinion that was occurring. The doctor noted that the family consultant had not outlined why she formed this opinion. The doctor also noted that the family consultant did not have the benefit of the documents produced on subpoena that the doctor was able to consider. The doctor did not agree that this amounted to “just a difference of professional opinion” but said that she had the benefit of seeing the child’s presentation at the end of 2014 and observed that some of the allegations that the child had made about events had occurred at about the time of the family consultant’s report. She maintained that it was clear to her that the child was alienated.
The doctor’s conclusions and recommendations are based on her firmly held opinion that the child has been alienated from his mother. She expressed the opinion that if the status quo were to remain then the most likely outcome would be that the child would have no contact with or relationship with his maternal family which she said would pose a number of risks to him. These risks would be the loss of the benefit of experiences and relationships with the maternal family and the mother’s cultural heritage. There are also direct psychological risks including to the child’s sense of identity formation, increased risk of depression and interpersonal relationship problems and behavioural challenges which may mean that he is more likely to have a turbulent adolescence and have difficulties in accepting authority where he disagrees with the views of the decision maker.
The doctor also expressed the opinion that a continuation of the status quo has a number of protective factors for the child. Most importantly, she says, “it does provide a “solution” to the conflict that he is in and removes the necessity for him to be placed in the middle of his parents’ conflict” which she says will relieve him of psychological stress, reduce his anxiety and assist him in focussing on the tasks of childhood.
The doctor is of the view that if the child were to move to the care of his mother then she is unsure as to the degree to which he would be able to continue his relationship with his father and extended paternal family members due to the high level of acrimony and conflict between the parents. In her view the father and his family would seek to undermine this parenting arrangement. Due to the fractured state of the relationship between the child and the mother Dr C is of the view that if the child’s living arrangements were to be changed then the child and the mother would need intensive therapeutic support. She also recommended that if this change were to occur there should be a long period of time where the child has no contact with the father, to enable the child to settle into the arrangement with his mother, to remove the possibility of exposure of conflict between the parents and reduce the opportunity for the father to undermine the child’s relationship with his mother.
Dr C opined that the child faces a number of medium to long term psychological risks due to the conduct of his father, in particular seeking to control the child in terms of psychological and social functioning. She anticipated that the father would have difficulty coping with the child as an adolescent particularly when the child’s views and behaviours differed from his own. The doctor was critical of the father’s persistent attendance at school when the mother was due to collect the child for changeover which the doctor described as “unreasonable” and which also placed the child in a situation of psychological distress for no good reason. She said that the father had in her opinion very little insight into the impact of his behaviour and he regarded his actions as protective and exemplary.
Overall, the doctor was of the view that the court would have to make a determination that the child lives primarily with one parent and have very limited or no contact with the other parent.
Notwithstanding that there are in her opinion a number of risks associated with moving the child to the care of his mother, including the child’s likely non-compliance, the father’s escalating attempts to undermine the arrangements and the child’s initial resistance, Dr C’s view is that the mother has a “more child focused, emotionally sensitive and appropriate parenting manner” and that the child’s “developmental, psychological and social needs would be more sensitively addressed in the care of the mother.”
Under cross-examination the doctor remained firm as to her recommendations, the risks involved in each of the scenarios and the capacity of the parents. Her overall recommendation remained that it was in the child’s best interests for his residence to be changed and for him to live with his mother.
Submissions on behalf of the ICL and the mother were to the effect that I should accept the expert opinion of Dr C and attach significant weight to it. The proposed orders of the ICL and the mother incorporate the recommendations of Dr C in her report and added to in the course of oral evidence. Submissions on behalf of the father with respect to Dr C’s evidence are less clear. The father relies upon many of Dr C’s opinions including that there are short term risk to the child’s wellbeing if he is placed in the mother’s care, and that it is almost certain that the child will have psychological issues regardless of his future care arrangements.
However, the father takes issue with Dr C’s evidence concerning “alienation” and submits that there is little foundation in her report as to the basis for the opinion that the child was “systematically alienated” against the mother. Further, it is submitted on behalf of the father that a difficulty with Dr C’s evidence is that she does not explain what she means when she says the child is “alienated”. It is submitted that this is a significant flaw in the doctor’s evidence.
I am of the view that the term “alienation” is clearly explained in the doctor’s report and expanded upon in her oral evidence. Dr C described the characteristics of children who have been alienated from a parent in significant detail. Her evidence of these characteristics is set out in paragraph 43, 48 and 49 of these Reasons. She described such children as having rigid automatic and inflexible views of a parent, appearing cruel and indifferent and not displaying ambivalence. Dr C deals with these characteristics at length in her report (at [101]-[111], [119]-[123]).
The characteristics of an alienated child were observed by Dr C in the child when seen alone and in interactions with each of the parents. Dr C said that she was not prepared to change her opinion as to alienation as she had not been presented with any significant evidence that the father has really meaningfully facilitated the relationship between the child and his mother. To change her opinion Dr C said she would need “an explanation that had behavioural or psychological credibility as to why [the child’s] presentation was so devoid of any ambivalence towards his mother” [which had not been presented].
In paragraph 136 of her report, when Dr C expresses an opinion in relation to the child’s relationship with his father, she describes the child’s description of his father as “almost perfect” which she says is most unusual in a child of his age. She opines that this level of loyalty may be an example of a “splitting” mechanism consistent with the characteristic of children who have been alienated from a parent as described in paragraph 132 of her report. In paragraph 154 of her report the doctor again refers to the way in which the child expressed his views, the child’s vocabulary, content and tone, his inability to elaborate in any detail about his complaint, his inability to describe anything even neutral about his half-brother and his cruel, callous and indifferent presentation towards his mother as being “characteristic of children who have been alienated from a parent”. Dr C made it clear when cross-examined that the foundation or facts upon which she based her expert opinion was her observations of the child with each of his parents and other people and her direct interaction with the child, as well as documents produced on subpoena.
It was submitted on behalf of the father that the other main area of Dr C’s evidence which should not be accepted relates to her opinion of the mother’s capacity. Dr C was extensively cross-examined concerning her opinion about the mother’s capacity and expressed a view about the evidence that the mother herself had given about her expectations of the child’s behaviour if he were to live with her. The doctor did concede that the mother is naïve about the intensity of the child’s likely behaviour and perhaps ill prepared for the extent to which his behaviour will be risky to her, her partner and the child. However, she maintained her opinion that the mother has the requisite capacity to manage the child’s behaviour with professional assistance based upon her own observation of the mother at her assessment and the evidence of the mother seeking assistance in the past.
I do not accept the submission made on behalf of the father that the foundation or basis for Dr C’s expert opinion is lacking or unclear. For the reasons indicated, I am of the view that she clearly identifies the basis upon which she formed her opinion, in particular the observations of the child alone and when interacting with each of the parents. She identifies clearly the aspects of presentation of the child which are highly characteristic of children who have been alienated from a parent. Similarly the doctor identifies the matters upon which she formed the conclusion as to the mother’s parenting capacity and the other conclusions she made in her report.
The father accepts the opinion of Dr C in relation to a number of other matters including the child’s psychological state and risk factors under the two scenarios for future care being considered by the Court. Some of these matters favour the father’s proposal and overall Dr C was clear that this is not a clear-cut matter. She says “I believe the Court is faced with a terrible predicament in terms of managing very real and quite severe short term risks in a fairly disturbed child versus the longer-term risks, which are also very significant in this child.”
In my view Dr C was an impressive and thoughtful witness. She was prepared to make concessions, for example that she had on occasions misused particular words and expressions in light of the evidence. She was extensively cross-examined over an almost entire day and although the father’s counsel refers to incorrect facts upon which she was said to have formed her opinion these are not identified.
Having regard to her expertise and experience, the documents to which she had access in forming her assessment as well as the opportunity for direct observation, appropriate concessions made under lengthy cross-examination and her consistence with the weight of the evidence, I accept the evidence of Dr C and attach significant weight to it in the determination of this matter.
The Areas of Dispute
There are three significant areas of factual dispute that require resolution. First, each of the parents has made allegations that the other has physically and sexually abused or neglected the child. These allegations of abuse have been maintained throughout the three sets of proceedings. Second, there is a factual dispute in relation to whether the child suffered any ill effects in the fire at his mother’s home in September 2013. Finally, the mother makes complaints about the father’s conduct especially since the July 2012 orders were made, which are disputed by the father.
Physical and sexual abuse
Neither of the parties or the ICL raises the issue of the physical or sexual abuse said to have been perpetrated by the parents as a risk factor of significance in these proceedings. However, such allegations were made either in the parties’ affidavits or emerged under cross-examination and in my view, having regard to the nature of these proceedings, findings in relation to risk of this nature must be made.
Allegations of abuse prior to first proceedings
Although the father alleges that the mother was violent and abusive towards him throughout their relationship, he says that only from late November 2008 when the family were first living together in Australia, the mother also became physically and verbally abusive towards the child who was then four. He alleges that there was an incident at this time when the mother slapped the child across the face which led to the parties’ separation and the child coming to live with him.
In his affidavit the father makes a number of specific allegations of abuse of the child by the mother from the time of separation, including that on one occasion she grabbed the child by the arm at the school gate, dragged him along and threw him into a waiting taxi. He says that when the child was returned to him later that evening he appeared vague and disoriented and appears to imply the child had been drugged. The mother denies this allegation and says she is not physically capable of having behaved in this way.
The father alleges that in early February 2009 the child disclosed to him that his brother J had kissed him on his penis. On another occasion, a few days later the father says the child disclosed to him that “[J] lets me touch his penis” and that his mother “put her fingers in my arse”.
The father says that as a result of these disclosures he instructed his solicitors to require the mother to provide “undertakings”. He gives no other details concerning the undertakings except to say that they were not provided and that the child continued to spend time with his mother.
Although the mother does not refer to this incident in her affidavit, an application for an ADVO annexed to the mother’s affidavit indicates that on 15 July 2009 she attended a police station and reported a possible sexual assault by the father on the child. This was investigated by the Joint Investigation Response Team (JIRT) made up of police and officers from the Department of Family and Community Services but no action was taken as the child did not make any disclosure during the interview.
Although the father does not refer to this incident in his affidavit, the same application for an ADVO annexed to the mother’s affidavit indicates that on 19 July 2009, the father made a complaint about the mother’s conduct to police. When interviewed by police the child said “[J] hits my tummy with his hand like this (open hand) and then after that my mummy hits my tummy with her hand like this (closed fist)”. The child reported that this had occurred near his birthday but later said that it had occurred “this weekend”. The child also told police that his mother would put him inside his room and shut the door and leave the light off and would not give him food or water for a long time. Police records note that the child had no physical injuries and though an interim ADVO was applied for, this was refused by the on-call magistrate.
In August 2009 the mother says that when the child was spending time with her he reported that his father slapped him across his face and said it was a game and he wasn’t supposed to tell her. She said she also observed a large bruise on the child’s arm and he reported that the father had picked him up, shaken him and dropped him to the ground.
Under cross-examination the mother maintained that prior to separation the father had physically mistreated her and the child to an even greater degree. She said that she did not make any complaint about this mistreatment to police as she was unaware that she could have an interpreter to assist her in making the complaint. She said that a teacher at the English classes she attended when she arrived in Australia saw her crying several times and told her to see a social worker who advised her that police could provide assistance.
Under cross-examination, the mother confirmed the truth of various allegations that she had made in the past such as telling the family consultant in June 2012 that she was worried about the child’s safety as she had seen the father hit the child in the face or kick him from behind.
In November 2009 and January 2010 the mother was concerned about the child touching his genitals through his clothes and complaining of an itchy and sore penis. The mother said that the child told her that his father “did something to [him] while we were having a shower together” which she reported to police and Community Services. The mother also took the child to see a doctor. It appears that the mother subsequently came to accept that the father had done nothing untoward but was simply attending to the child’s hygiene needs appropriately.
When interviewed in February 2010 by Dr R, the expert appointed in the first parenting proceedings, the mother reported that the father had been violent to the child and that she also had concerns that he may sexually abuse the child. She told the doctor that the child told her that the father had pinched and touched him on his penis and kissed him on the nipple. Although this allegation is not referred to in the mother’s affidavit, under cross-examination she confirmed that she had made those allegations and believed the events had occurred.
The father also reported to Dr R that he believed that since separation the mother had abused the child by “put[ting] her finger into his bum twice”. The father referred to the matter having been investigated by Child Protection and told the doctor that he was “very convinced” that sexual abuse had occurred. The child also made a similar allegation to the doctor about his mother. However the child said “I remember, it was a tissue in my bum, it was two times in my bum”. Dr R noted that these statements were made in a parrot-like fashion and that the child was unable to explain them or elaborate upon them and was not distressed or emotionally upset when relating them. He said “these appeared to be matter of fact statements as if he were reporting a previously prepared sentence”.
The doctor described both parents’ allegations of possible sexual abuse against each other as “a competition as to who can present the most convincing story”. He also felt that as the child had referred to there being “a tissue in my bum” it was unclear as to whether he was referring to toileting. (The father had reported to the doctor that the child had some toilet problems and needed assistance.) Dr R expressed the following opinion in relation to these allegations:
In short I believe that the sexual abuse allegations from both parents are spurious and that they have developed in the context of two parents frightened of losing their child to the other parent.
The mother agreed that there were some significant allegations including that the father had sexually abused the child which were not in her affidavit. When asked why they had been omitted the mother said that the matters were important but that she felt that nobody believed her. She maintained under cross-examination that the father had physically assaulted and sexually abused the child.
The father says that in August 2010 the child reported that the mother had been stealing money and clothing from a shop and was arrested and taken to the P Police Station which caused the child to be frightened. He said that the child also reported that this had happened previously at Suburb F and the mother had also been taken to a police station. He says that when he questioned the child, the child told him that he was too scared to report it earlier and that when he had reported an earlier incident of the mother stealing the mother had slapped him. Police records indicate that the mother has never been arrested for stealing. The father claimed that he was not aware that there was no record of the mother’s arrest until the current proceedings and suggested at times under cross-examination that he still did believe that she may have been arrested for stealing in the child’s presence as alleged.
Allegations of abuse between the first and second proceedings
The father makes no complaint in his affidavit about abuse of the child by the mother during the period in which the child lived with her, though he expresses concern about the child’s reported violent and aggressive behaviour in the care of the mother and complains about the mother unilaterally seeking medical assistance in relation to the child’s behaviour.
When interviewed by the family consultant in June 2012 for the purposes of the second parenting proceedings, the mother alleged that the father had been physically violent to the child. The mother said that the father “used to hit [the child] a lot, either in the face with an open hand or kick him from behind very hard” at the time they were living together as a family. She also alleged that the father would grab the child and put him under a cold shower if he cried. She did not make any more recent allegations of violence to the family consultant.
The father denied to the family consultant that he had ever put the child under a cold shower or hit him. The father also made no allegations to the family consultant that the mother had been physically abusive towards the child. In the course of the assessment by the family consultant the child alleged that his father “treats me good” whereas his mother “hit me with a stick”, without providing any other context for this allegation.
As noted earlier, shortly before the commencement of the retrial in July 2012, the child, who was then eight, ran away from his mother’s home and was found crying and distressed by a person apparently unknown to him, Ms H, in a street in Suburb P. The child told Ms H that he was walking to his father’s house and she offered to drive him there and telephoned the father to let him know. The father says that when he received the phone call from Ms H he drove home and collected the child.
In his trial affidavit, the father says that the child told him that the reason he ran away from home was because the mother was drunk and when the child spilt a glass of wine, she hit him.
In an affidavit sworn a few days after the event, Ms H says that on 2 July she was walking in a street in Suburb P and observed a young boy [[D]] who was crying and obviously in distress. He told her that he had run away from his mum and was walking to his dad’s home and she offered to drive him there and contact his father. She said that while waiting for the father to arrive the child said the following:
…he “felt alone” and was “very unhappy”. He said “Mum hurts me and smacks me.” I said “Where does she smack you?” and he said “My head, my arms, my legs and my stomach and she also slaps me across my face”. I said “When does she do that?” And he said “While I’m watching TV and Mum locks me up as well.” He also said to me “I want to live with my Dad”. I said “We should go to the police”. He said “Don’t go to the police because they don’t listen to me”.
Although the father does not refer to any police involvement in this incident in his affidavit, police records reveal that the mother contacted police when the child went missing and they attended the mother’s house and spoke to her. The police records do not record any observations that she was alcohol affected. The record indicates that the police attempted to contact the father on his mobile phone which he answered on the second or third attempt and that the father advised them that the child was with him and they were on their way to see their family doctor. The father says in his affidavit that he telephoned his solicitor at the time and the police record indicates that the father said his solicitor advised him to take the child to their doctor as he apparently had visible injuries. The police record also indicates that the father was advised to present the child to the police station after taking him to the doctor which he did later that night. At the police station the child showed police three small bruises on his body and claimed he had a lump on his right upper arm which was not visible. He told police that these injuries were a result of being hit with an open hand to the back of the neck and back by his mother. Police records describe the child as appearing well and in good health. Under cross-examination the father maintained that the child was feeling scared at the police station and was complaining of pain. He also maintained that there was a significant bruise on the child’s cheek.
Under cross-examination about the child’s complaints the mother initially said that she has always believed what the child told her. She said that she did not think that the child had ever lied to her, or that the child was saying things to her in the past that she wanted to hear. However, when she was asked whether she still believed that the child was telling the truth when he made those complaints to her, she said that she could not say because it is two years since she has spoken to him.
Although the mother had said under cross-examination that she accepted that the child was always truthful, she subsequently agreed that his allegations that she had been involved in shoplifting and that the police were involved were untrue. The mother ultimately agreed that the child would tell anyone who would listen to him whatever he could to remain in the father’s care.
In general, the father maintained that he believed that the child was being physically abused by his mother prior to and after the October 2010 orders. He specifically said that he still believed that the child had been locked in his room by the mother, sexually abused by his half-brother J and had been exposed to his mother and Mr O having sex. The father also believed that the mother has been intoxicated on many occasions when the child was in her care including when she collected him from school. He also made it clear that he believed that these things had occurred prior to the orders to which he had consented, in July 2012. The father claimed that he only agreed to those orders notwithstanding his concern, because his solicitor at the time advised him it was better to agree the them.
Allegations of abuse after July 2012
Although the father does not make any allegations in his affidavit that the mother abused the child between July 2012 and September 2013, in February 2013 the father made a complaint to police concerning the mother’s alleged conduct and the police sought an ADVO against the mother for the protection of the child.
When asked about the nature of his allegations in February 2013 under cross-examination, the father was extremely vague and general and could say nothing more than that he understood the child was “mistreated”. When pressed about his concerns he said “specifically, well, going on there was physical abuse, and they had been locking – locking him in – in the room. There was – wasn’t treating properly”. He then said that the child only made these complaints to him after the ADVO was in place. Under extensive cross-examination about his complaint to police at this time the father maintained he had no recollection of making a complaint. The father clearly maintained that the ADVO had come about as a result of Ms W’s complaints rather than his. Ms W’s notes which were produced on subpoena indicate that the child complained to her particularly on 5 February and 13 February about the mother’s drinking including when she collects him from school, locking him in his room, depriving him of food and threatening to kick him in the ankles.
The application for an ADVO and other police records indicate that the father told police in February 2013 about the child’s engagement with a doctor [psychologist Ms [W]] since November 2012. It is recorded that following an appointment on 5 February 2013, the doctor said to the father “[The child’s] in danger. Do you realise the mother is drinking”. It also records that the child had complained to the doctor that he is locked in his room and can’t get out every day when he is with his mother. The child also reported that when the mother picks him up from school she is drunk, when they get home the mother drinks beer and sends him to the toilet and then to his room until the next day. The child said that he had not made these complaints previously because the mother threatened to lock him in his room and kick him in his bad ankle. The child reported that the mother opens the door a little on occasions and places cereal on the floor and closes the bedroom door again. He complained that the only time he is allowed to leave his room is to go to school and when his mother goes to “Westfields … to buy beer”.
As a result of the complaint police obtained a provisional ADVO for the protection of the child. The mother opposed the making of the ADVO and in May 2013 the application was withdrawn by police.
The mother has at all times denied the allegations apparently made by the child to his psychologist and father. She denies that she drinks excessively, that she has ever hit the child or that it is even possible to lock the child’s bedroom door from the outside. Mr O, the mother’s partner says that he has never seen the mother drunk and she only drinks one to two glasses of wine occasionally. Mr O also says that the door on the child’s bedroom is only capable of being locked from the inside.
The father also makes the serious allegation that on an unspecified occasion the mother punched the child in the mouth with such a degree of force as to cause two teeth to fall out. This incident is not referred to in the father’s affidavit and appears to have first been raised by him in the course of the assessment by Dr C in December 2014. Dr C says the complaint emerged as follows:
At some point in the opening phases of the interview I commented to [the child] that I could see he was wearing an orthodontic plate and he told me that he has had to have a plate (or fixed braces I couldn’t quite tell) “because Mum punched me and Dad took me to a dentist”. As he was explaining this he was gesturing a fist to the side of his cheek. [The father] told me that [the child] had come to him and said “Dad don’t get annoyed but Mum punched me and two teeth fell out”. [The father] told me that he then took [the child] to see his godfather who is a dentist who arranged for him to have a plate or braces. I was not quite sure about the situation and I asked [the father] to clarify that [the child] had lost two baby teeth when he had spent time with his mother and he told me, quite calmly, that this had been the result of a punch from the mother.
Under cross-examination the father initially denied having told Dr C that the mother punched the child causing two baby teeth to be knocked out. The father subsequently appeared to agree that he had told Dr C that this had occurred, explaining that the child had told him about it when he came back from his mother. The father was unable under cross-examination to provide any context for this allegation and could not even say that the child had made the complaint before or after the July 2012 orders. He agreed that it was a very serious allegation but it had not ever been contained in any affidavit filed in the proceedings and complained that no one had wanted to listen [to the complaint]. He later suggested under cross-examination that the child’s teeth had been knocked out when the child ran away from his mother in July 2012 but then immediately after said that the injury to his mouth had occurred prior to that date. The father then said that he had taken the child to a dentist but had not told the dentist how the teeth were knocked out as nobody would listen. The father subsequently agreed that this was the most serious injury that the child had received from his mother and said he had complained about it but nobody had listened.
Discussion of abuse allegations
Allegations against father of abuse
The mother only makes one allegation of abuse by the father in her affidavit, that in August 2009, the child reported to her that his father had slapped him across the face and had picked him up, shaken him and dropped him to the ground. The only other complaint contained in her affidavit, concerning her observations of the child’s swollen and red penis in November 2009 and January 2010 seems to have been subsequently accepted by her as not evidencing any abusive conduct by the father.
However, under cross-examination the mother maintained that the father had been harsh and aggressive towards the child prior to separation, as she reported to the family consultant in June 2012. She also maintained that she did have concerns that the father had possibly sexually abused the child in July 2009. The mother says that she did not include these allegations in her affidavit as she did not think that anybody would believe her.
The father denies any allegations of physical or sexual abuse. It is his case that there is not an unacceptable risk to the child on the basis of alleged physical harm, but the fact that the mother believes that this abuse occurred is relevant to the issue of her view of him.
Although it was not submitted on behalf of the mother that the risk that the father may physically abuse the child represents an unacceptable risk of harm to him, Dr C made a connexion between physical abuse and the child’s extreme loyalty to his father. She opined that one possibility for this presentation was that in the child’s early childhood the father was an authoritarian, harsh and brutal parent who subjected the child to extreme physical discipline. If this had been the case but had now ceased, Dr C felt it is possible that the child’s extreme loyalty is based on his fear that the father may return to such behaviour if relations between the two of them do not remain amicable. For this reason some consideration must be given to this risk factor. Further, any allegation of physical harm is in my view a significant issue of risk which must be evaluated. Similarly, any allegation of sexual harm, even if it is on its face spurious, must also be considered by a court where the best interests of the child are paramount.
In M v M[1], the High Court said at [23]-[25]:
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.
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.
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.
[1] (1988) 166 CLR 69; [1988] HCA 68.
In that case, the High Court said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[2] (a leading Full Court authority on this issue), the Full Court agreed that reference to the Evidence Act1995 rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[2] [2007] FamCA 1235 at [72].
The principles have been extended to other forms of abuse.[3]
[3] See eg Orwell & Watson [2008] FamCAFC 62.
In my view, having regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk, it is appropriate to approach the matter by first determining whether I am satisfied that the alleged physical and sexual abuse did occur.
One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[4], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[4] (2005) FLC 93–235.
The first question therefore is whether I am satisfied that the allegations that the father has physically and sexually abused the child are proven, on the balance of probabilities, taking into account the matters set out in s 140(2) of the Evidence Act 1995 (Cth).
So far as the allegations of alleged sexual abuse are concerned, they are based entirely on disclosures said to have been made by the child to the mother when he was five years old, caught in the midst of an extremely acrimonious dispute between his parents and shortly after the father alleges that the child had made similar complaints against the mother. A JIRT investigation at the time determined that the matter should be taken no further as the child made no complaint when interviewed.
In my view the mother has not for some time genuinely believed that the father sexually abused the child as she alleged in 2009. It is inconceivable that she would have consented in July 2012 to orders that provide for the father to have the primary care of the child had she believed the allegations were true. Further, it would also be expected, in my view, that such an allegation would have been included in the Notice of Child Abuse filed by her in May 2014, especially as another complaint of alleged sexual abuse (from which she subsequently resiled) was included in that document. I agree with the characterisation made by Dr R of allegations of sexual abuse made by both parents (at the time they were first made) that the parents seemed to be in a competition as to who could present the most convincing story. I also note that the mother did not complain of about this incident of alleged sexual assault to the family consultant in June 2012.
In these circumstances, and especially when it is unclear exactly what is alleged, I am not satisfied that the father sexually abused the child or that the father poses an unacceptable risk of harm to the child on this basis.
The allegations of physical abuse made by the mother prior to separation are based upon the mother’s direct observations. After separation the allegation is based upon complaint said to have been made to her by the child.
The allegations of physical abuse are that prior to separation the father regularly hit the child in the face with an open hand, kicked him and placed him under a cold shower or hit him if he cried. The mother also alleges that the father slapped the child in the face and shook him and dropped him to the ground in August 2009. The mother made complaint along these lines to Dr R in February 2010 and to the family consultant in June 2012. Under cross-examination she maintained that these allegations were true. The allegations of abuse in August 2009 are also contained in her trial affidavit.
Under cross-examination the mother said that she did not complain about the father’s conduct towards the child (and herself) prior to separation because she was unaware that the police could assist her until she was advised by a a social worker that she would be given this assistance. It is to be remembered that the mother was at this time newly arrived to Australia, spoke virtually no English and was unhappily living in the father’s parents’ home. Under cross-examination the mother said that she was upset with the father when he took the child into his care when the parties first separated in January 2009 because he was “mistreating us and physically he was mistreating [the child] more”. When the mother was asked whether she still believed that the father was violent towards the child as she alleges prior to separation, she answered “of course, because I saw that”.
The mother was not cross-examined specifically about the child’s complaint to her that his father had physically abused him in August 2009 though questions were asked concerning her opinion about the truth of the child’s complaints generally.
In his trial affidavit the father responds to allegations that the mother had made in previous affidavits. He generally denies the allegations of violence towards her and that he had alienated the child, and says that he has not sexually or physically abused the child or used physical punishment.
In the course of cross-examination the father referred to his attendance at a parenting course which he says was recommended by Ms W, the psychologist providing treatment to the child. When asked what he had learnt in the parenting course, the father said “well, the same thing I’ve been doing at the moment. Just try to listen to the…listen to [the child]. How to come to the – in terms of control his behaviour and instead of to punish on the physical, just the way you talk” (emphasis added). He later said that the course didn’t teach him anything new but what he learnt was exactly what he was doing.
I am not satisfied on the balance of probabilities that the father abused the child as alleged in August 2009, a few months after separation. This allegation is entirely dependent upon the complaint by the child who was just five years old in the context of a very acrimonious separation.
I am however satisfied to the requisite standard that the father did physically abuse the child prior to separation as the mother alleges by slapping him in the face, kicking him and putting him under a cold shower as punishment. The mother maintained under cross-examination that she observed the father do these things herself and in my view provides a satisfactory explanation as to why she did not complain to police at the time. For the reasons given later in the judgment I also find the mother a more credible witness generally than the father and accept her version over his where they differ. She continued to maintain the allegations even after the first proceedings when interviewed by the family consultant in June 2012. Although the mother’s consent to orders that the child live predominantly live with the father could reasonably be said to be inconsistent with any concern that she had at that time (July 2012) that the father posed a risk to the child on this basis it is not inconsistent with her maintaining that the father had perpetrated the abuse three years earlier.
There is also some suggestion that the father may have previously use physical punishment with the child as he said under cross-examination that he had already implemented the practices suggested in the parenting course, of talking to a child rather than resorting to physical punishment. Dr C is of the opinion that one explanation for the child’s extreme loyalty is that the extreme physical discipline the mother described (which she did not see any evidence of at the time of her assessment) may have occurred but then ceased, and that “a possible impact would be that [the child] remains extremely loyal to his father lest the current goodwill between them be dissolved”.
In relation to an assessment of the magnitude of the risk, I firstly note that the finding is limited to the father’s behaviour prior to separation. Further, in raising the possibility of harsh punishment as an explanation for the child’s extreme loyalty to his father, it could be said that there is a low level of risk that the father may resort to this form of conduct in the future, as the child has developed obedient behaviour based on fear. However, Dr C is of the opinion that the father will have difficulty coping with the child in adolescence, especially when the child’s views and behaviours differ from his own. The child may not continue to be as compliant and obedient as he has been in the past and there some risk in my view, that the father may utilise severe physical punishment in his management of the child in the event that the child is disobedient and non-compliant in the future.
Allegations against mother of abuse
The father alleges in his affidavit that the mother slapped the child in the face when he was four, which was a precipitating event for their separation. He also makes a very serious allegation of sexual abuse by the mother (digital anal penetration) based entirely on a complaint said to have been made by the child when he was just less than five, very shortly after separation. The only other specific allegations of abuse referred to in the father’s affidavit are that the mother threw the child into a taxi (and it appears to be suggested, drugged him), shortly after separation, and that she assaulted the child when he ran away from her in July 2012.
The father’s complaints of the mother’s abuse to police on at least two occasions which led to police seeking ADVOs for the protection of the child are not referred to in his affidavit. Under cross-examination however, the father maintained allegations of abuse and neglect by the mother that he previously made. These complaints are that she behaved sexually inappropriately with her partner in the child’s presence, struck or punched the child, locked him in his room and provided inadequate food and was intoxicated when collecting him from school or when he was otherwise in her care.
For the reasons previously given, I must first determine whether I am satisfied that the allegations against the mother of physical and sexual abuse and neglect of the child are proven on the balance of probabilities, taking into account the matters set out in s 140(2) of the Evidence Act 1995 (Cth) and then consider the issue of unacceptable risk.
Other than the allegation that the mother slapped the child prior to separation that the father says he observed, the father’s allegations of abuse are entirely dependent upon complaints said to have been by the child from around the time of separation, and which continued until the time of the hearing. In these circumstances, although credit of each of the parties is relevant and is dealt with later in these Reasons, the more significant issue is whether the child’s accounts are credible and reliable.
Under cross-examination the general tenor of the father’s evidence was that he believed the child when the child reported that the mother had mistreated him. However, when asked about the child’s allegation that the mother had been arrested for shoplifting on three occasions in his presence, the father agreed that it was possible that the child was lying and could not provide any other explanation about why the child would make such claims. On other occasions during his cross-examination he agreed that the child sometimes made up stories, though when asked to give an example he appeared to suggest that the child only invented stories about very trivial matters such as a lost item of clothing. It appeared that the father continued to maintain that he did believe that the child was truthful when he made serious allegations about the mother’s conduct.
Although the father does not set out in his affidavit details of the child’s complaints about the mother’s conduct to various people over the years, it is not in dispute that this occurred and the mother sets out in her affidavit instances where of the child complained about her conduct to a wide range of people in different settings over many years.
Dr B, the psychologist who provided therapy to the child from October 2010, says that the child did not disclose to her at any time that the mother had used corporal punishment or physical discipline, although he did in the time leading up the 2012 hearing, disclose that his mother had behaved sexually inappropriately with her partner in his presence and had made similar allegations prior to the hearing in 2010. Dr B expressed the following opinion about the child’s complaints:
[The parties are] caught in a bitter struggle for power and control which had implicated [the child] who in the time I saw him seemingly tried to please each parent by saying what he thought they wanted to hear. This included making abuse disclosures that may not have had much substance from a very young age to the present.
Under cross-examination Dr B confirmed that although the child had made other complaints about his mother’s care he did not allege that his mother had physically abused him, and Dr B would have expected that he would have told her if this had occurred.
I am not satisfied on the balance of probabilities that the mother has abused or neglected the child in the manner alleged for the following reasons.
The first complaint, that the mother slapped the child on his face which precipitated the separation is dependent upon a finding in relation to the parties’ credit as the father alleges that he observed the mother do this and she denies it.
Overall, I prefer the mother’s version of events over the father’s where they do not agree for reasons related to the father’s credit generally and with respect to specific allegations. Generally there were a number of occasions where the father maintained his position under cross-examination even when confronted with clear evidence to the contrary. For example, the father maintained his belief that the mother had been arrested three times in the child’s presence even after being informed that police records indicate that she has not ever faced any criminal charge. Other aspects of the father’s evidence are inherently implausible such as the suggestion that the mother drugged the child when he was four and attended the school regularly intoxicated without attracting the attention of any person. Further, while the mother provides specific detail about most of her complaints, the father in generally general and vague, even about matters of great significance where a clear recollection would be expected. He is not for example able to indicate at all when the mother is said to have punched the child to the mouth. Although on occasions the mother was also vague in her recollection, this vagueness in my view related to matters of less significance concerning the child’s best interests, for example the details of her knowledge of the father’s extended family.
In addition to a general finding about credit I also make the following specific comments in relation to particular complaints.
In relation to the complaint that the mother threw the child into the taxi, she says this is physically impossible as even when the child was four years of age the child was big for his age.
Dr C was clear to emphasize that there were significant short term risks associated with the change in the child’s circumstances proposed by the mother and ICL. The doctor identified as risk factors that the child is likely to be non-compliant with the orders and agreed under cross-examination that this non-compliance could include the child running away from the mother’s care, being abusive towards and even physically assaulting the mother, making a range of efforts to contact his father, complaining to a wide range of people about the mother’s conduct, and involving police and other authorities. As previously discussed, the doctor had some concern that the mother was either naïve about the likely intensity of the child’s behaviour, naïvely optimistic and possibly ill-prepared for the extent to which his behaviours would be risky to her, her partner and the child. However, as discussed later in these Reasons, the doctor maintained that the mother had the requisite capacity to manage the child with professional assistance. She stressed the importance of obtaining appropriate therapeutic support and for the block-out period with the father until the child turns at least 16 to be “comprehensive and absolute”.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
If the Court were to order that the child live with his father and spend defined time with his mother as envisaged under the father’s alternate order, in my view a real practical difficulty may arise in putting such orders into effect. The child is used to having his position endorsed and the father is in the practice of allowing this to happen. It is highly likely that the child will resist spending time with his mother and that the father will endorse this resistance.
There would be some expense involved in the supervision regime envisaged in the ICL’s proposed orders for the child’s time with his father after he is 16.
Capacity of each parent and any other person to provide for the child’s needs including emotional and intellectual needs
A central thrust of submissions made on behalf of the father is that the mother does not have the capacity to manage the child’s behaviour as she has no definitive plan in place, is extremely naïve about what is likely to happen in the future and is unclear about where she would obtain the appropriate advice and skills to assist her. It is also submitted that in the past there was not a significant or sustained improvement in the child’s behaviour in his mother’s care and that there is a high likelihood that in the future the child will run away and place himself in physical danger as he has done in the past. Although the submissions on behalf of the father did not go so far as to say there is an “unacceptable risk of harm” to the child due to the mother’s lack of capacity in being able to manage his behaviours, the submission that the risk to the child is “real, significant and extremely high” in my view is tantamount to a submission that it is an unacceptable risk.
Although I agree that the mother’s expectation about the child’s behaviour in the event that he is placed in her care was naïve and unrealistic when expressed, in my view the mother has the demonstrated capacity to act in accordance with advice in the past. She is likely to have listened carefully to the evidence of Dr C about her naiveté and the extent of the behavioural problems she is likely to experience if the child comes to live with her.
Dr C’s evidence was to the effect that the mother’s underlying capacity to provide for the child’s needs was very good. Further, in her view there were two key factors which were critical to the mother’s management of the child’s behaviour should he live with her. First, she was of the opinion that it was crucial that the father should be excluded from the child’s life until he is 16 and that there should be absolute certainty that the child should not have contact with him. Second, it was imperative that the child should receive intensive therapeutic support. Dr C agreed that the harm arising from the behaviours that the child is likely to engage in would be mitigated if the exclusion of the father was absolute until 16 and the child received therapeutic support.
I accept Dr C’s opinion that the mother has a very good capacity to provide for the child’s emotional, educational and practical needs and that the mother “appears to be sensitive to [the child’s] predicament and despite his hostile and callous behaviour appears to respond to him with an attitude of love and stability”. The doctor opined that when the child lived with his mother under the previous orders and behaved in challenging and difficult ways, the mother with professional support was able to manage his behaviour which in the doctor’s view bodes well for the mother’s capacity to obtain appropriate skills in stressor circumstances.
So far as therapeutic support is concerned, although the mother does not propose an order in this regard, she consents to an order proposed by the ICL in relation to that issue. The order proposed by the ICL is that the mother must arrange for the child to recommence counselling with Dr B immediately upon the making of the orders. She is required thereafter to follow all recommendations and directions of Dr B including engaging the child with other health professionals and in the event that occurs must also follow the recommendations or directions of that professional. Although there was a lack of certainty as to whether Dr B could engage with the child in the future given the allegations against her made in the past, there is no dispute that Dr B is a suitably qualified person to either undertake the therapy herself if she feels able, or make that referral to another suitably qualified therapist.
It is also submitted on behalf of the father that the mother has less financial resources than the father and has limited capacity to speak English which are both matters that limit her capacity as a parent to provide for the child’s needs. Although there was not a great deal of evidence concerning the parents’ respective financial circumstances, it does appear that the father is in superior financial position than the mother. However, there is no evidence that suggests that her more limited financial capacity is to such an extent that she is unable to meet the child’s needs. Similarly, although the mother was clearly not as capable in the English language as the father, I am unable to conclude that she has a limited capacity to meet the child’s needs on this basis.
As between the parents, I have greater concerns about the father’s capacity than the mother’s capacity on the basis of Dr C’s evidence. I accept her opinion that the father has in many ways a very good capacity to care for the child and to respond to some of his practical and intellectual needs but am of the view that great concern arises in relation to his capacity to meet the child’s emotional needs which Dr C expresses as follows:
I think that the father has an enormous blind spot with respect to his capacity to understand [the child’s] emotional needs and most particularly to understand the extraordinary degree of conflict that he has been exposed to. I think the father has been manipulative in undermining [the child’s] relationship with his mother and has failed to understand the medium and long term implications of this on [the child’s] wellbeing.
Under cross-examination the father clearly had no understanding about the meaning of Dr C’s opinion with respect to this issue and had no insight into his lack of capacity. When asked about Dr C’s opinion (referred to in paragraph 316) and what he thought it meant the father said “I gone blank on that”.
When cross-examined about the psychological distress (identified by Dr C) that the child is subjected to when father attends school on the days that the mother attends to collect him, the father said that he disagreed with Dr C’s opinion. He then claimed that he had stopped attending the school at the beginning of that month (August 2015) and at the end of the school day stood at the traffic lights over the road from the school instead. He said that this was a result of him reflecting on and putting in place Dr C’s recommendation. I am not satisfied that the father does understand the position he places the child in, and did reflect upon Dr C’s recommendation, as he essentially maintained under cross-examination that his attendance at the school at these times does not cause any difficulty for the child. Further, Dr C’s report was released in March 2015 and even on the father’s own case he continued to attend the school on the days the mother attended right up until the time of the hearing.
There are also some specific incidents which in my view indicate that the father was not child-focussed and put his own needs above those of the child. For example, the father’s attempts at causing the child to disengage from Dr B contaminated the child’s established therapeutic relationship with Dr B. Dr C described the tainting of the trusting relationship that the child previously had with Dr B as “one of the core psychological risks that [the child] faces with this style of parenting”. Engaging a new psychologist, Ms W, in a secretive fashion in my view was for the purpose of meeting his own strategic needs. The father was, in my view, well aware that the child was likely to make complaints about the mother to Ms W and when the child did so, the father used these complaints to ground his complaint to police which formed the basis of a police application for an ADVO against the mother.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
The child is an 11 year old boy of Spanish/South American heritage. He will be in the last days of primary school when these Reasons for Judgment are delivered. Since October 2013 he has lived with his father and spent no time with his mother other than seeing her at school when she attends at changeovers under orders that provide for him to live with her for five days a fortnight and half of the school holidays. He has not received the benefit of living with or sharing a relationship with his mother who clearly loves him very much.
The child is engaged in a number of extra-curricular activities including soccer and music. It is proposed that he attend a performing arts high school in the New Year. He is described by Dr C as “a very theatrical child”, is very animated and gregarious, though Dr C also says he is very emotionally immature. The child is a large boy for his age and some aspects of his presentation are sophisticated. He is psychologically disturbed as a result of the intolerant position in which he has been placed as a result of his parents’ dispute, particularly over the past two years.
The child is a Christian and undertook his first holy communion in May 2015. He regularly attends with his father at the “[S] Church” at which his father assists in conducting the service.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
I accept Dr C’s description and opinion of the mother’s attitude to the child in the following terms:
… [she has] a real sense of – I felt a very child-focused sense of the terrible predicament that [the child] was in, and I felt that that reflected – and her later conversation with me reflected a large degree of insight and compassion for [the child’s] perspective, and that was entirely absent in the father’s presentation or communication …
In my view the mother has also been placed in a terrible predicament. The father, quite unreasonably in my view, has withheld the child from her since the September 2013 fire on the basis of spurious allegations about ill effects of the fire on the child’s health and in apparent compliance with the child’s wishes. I make no critical finding against the mother to the effect that she bears responsibility for not spending time with the child since September 2013. Although the mother was unfortunately not as quick to commence proceedings after the September 2013 events as she was when the parents first separated in 2009, she took active steps to spend time with the child under the orders by attending school on the changeover days and encouraging (but not requiring) the child to come with her. Initially she sought the assistance of school staff but they understandably did not want to become involved. When it became clear to the mother that this was not going to occur she then took appropriate steps available to her in an attempt to have the father comply with the orders.
Although the father shows a loving and at some level responsible attitude to the child, he is generally focussed more on his own needs than on the needs of the child. He has a particular need to control the child and to undermine the child’s important relationships, especially with his mother. The father has at all times, in my view, had a clear understanding that he was required to make the child available to the mother under the parenting orders and a capacity to require the child to go with her which the child was likely to obey. His attempts to justify withholding the child from his mother and significantly undermine that relationship over time show a particularly significant disregard for his responsibility as a parent.
Family violence
Although each of the parents alleges that the other was the perpetrator of family violence against the other, these claims are largely historical and this issue did not assume much significance in these proceedings.
However, the father’s coercive and controlling behaviour towards the child, in my view, amounts to family violence as defined by the Act. Section 4AB provides that “family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family…”. Subsection (2) sets out (non-exhaustive) examples of behaviours which may constitute family violence and includes
(i)preventing the family member from making or keeping connections with his or her family, friends or culture.[9]
[9] In Bant & Clayton [2015] FamCAFC 222 at [90]-[92] the Full Court rejected the submission that this section does not apply when the family member who is being prevented from keeping connections with his family is the child himself.
Although the child has maintained some minimal connection with his mother, the father has, through his behaviour controlled the child and through this control damaged the child’s relationship with his mother. On this basis I am satisfied that the father has been a perpetrator of family violence. The issue of the father’s coercion and control which has caused the child to lose his relationship with his mother is adequately dealt with under a number of the other considerations.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode[10] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[10] (2006) FLC 93-286.
In this matter, each of the parents is seeking an order of sole parental responsibility for the child. Under his alternate proposal the father sought equal shared parental responsibility. The ICL supports the mother’s application that she exercise sole parental responsibility.
Where the Court is to determine parental responsibility, the starting point is s61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
For the reasons given I am satisfied that the father has engaged in psychological abuse of the child. I am also satisfied for the reasons given that the father is perpetrator of family violence. Accordingly the presumption does not apply. Although it is not the father’s prime position he also proposes that the parents equally share parental responsibility so some consideration should be given to this proposal.
The evidence is that the parents have not jointly made decisions at least for the past almost six years in which they have been separated. There is no suggestion that they are capable of doing so in the future. The mother’s orders envisage that the father will play no role in the child’s life for the next four and a half years. If orders are made for the child to live with the father the mother does not seek orders that the child spend time with or communicate with her. I am satisfied that if time with the mother is to occur in accordance with the child’s wishes such time will not occur. In these circumstances in my view that the only appropriate order that is in the child’s best interests is for parental responsibility to be exercised by the parent with whom the child is to live.
Conclusion
As indicated at the outset the stakes are extremely high for the child, as the decision in this matter essentially means that he will have a relationship with only one of his parents until he is at least 16. For the reasons indicated, an application of each of the primary considerations indicates that it is in the child’s best interests for orders in terms of the mother’s proposal to be made. However, significant issues in relation to the mother’s capacity, the short term risks of harm to the child and the likely impact of the change in circumstances upon the child have been raised on behalf of the father.
Dr C assessed the difficulty in considering both short term risks and long terms risks as follows:
…when assessing future risk, and this is the predicament before the court, greater valence is going to be given to short-term knowable risk and particularly when it involves the physical safety of a child, but a thoughtful consideration of his best interests has to, of course, be lifelong, and we have to consider the psychological risks that face him, which are very severe.
Although the short terms risks involved in the mother’s proposal do involve the physical safety of the child and are more predictable, the long term or lifelong risks must in my view be given greater weight. In these circumstances I am of the view that the orders proposed by the mother, which are largely supported by the ICL, are those which are in the best interests of the child, with one exception. Neither legal representative drew my attention to evidence to support their proposed orders that the child’s time with his father after he turns 16 be supervised.
There is also significant controversy surrounding the proposed orders of the ICL and the mother that these Reasons and orders and Dr C’s report be provided to the child’s school, local police and the Department of Family and Community Services with a form of direction to those agencies that this information be dealt with by those agencies in a particular way. Dr C was particularly concerned that the orders be enforced and the child’s capacity to complain to other agencies cannot be underestimated. Dr C recommended that there be some common understanding by these relevant agencies who are likely to deal with the child in future about the Court’s findings and orders and that this understanding ideally will inform the agencies’ actions when dealing with the child in the future. I am of the view that it is appropriate to provide the documents referred to these agencies together with a request that they give consideration to that information when dealing with the child. The final orders made in this regard achieve this goal without seeking to bind those agencies in circumstances where they are not parties to the proceedings.
The orders that I make are as set out at the forefront of these Reasons for Judgment.
I certify that the preceding three hundred and thirty nine (339) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 December 2015.
Legal Associate:
Date: 10 December 2015
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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Standing
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