WAFULA & BATLEY

[2019] FamCA 687

FAMILY COURT OF AUSTRALIA

WAFULA & BATLEY [2019] FamCA 687

FAMILY LAW – CHILDREN – Best interests – with whom the child lives – where the mother seeks orders that the child continue to live with her and spend three hours supervised time each year with the father – where the mother says she will commit suicide if the Court orders unsupervised time  – father’s application for change of residence – where the parties separated when the child was less than six weeks old and the father has had only supervised time with the child –where the mother alleges the father committed family violence and raped her during the relationship – where the mother sees little or no benefit of the child having a relationship with the father–  where the father denies the allegations of family violence and rape and says the mother is psychiatrically unwell and the child is at risk of psychological abuse in her care – where the mother withdrew from proceedings on the twenty-seventh day of final hearing – orders for the child to live with the father and the child’s times with the mother reserved

FAMILY LAW – CHILDREN – Best interests – parental responsibility – where the father seeks sole parental responsibility in respect of the child – where the mother initially sought sole parental responsibility however withdrew from proceedings on the twenty-seventh day of final hearing – orders for the father to have sole parental responsibility

Family Law Act 1975 (Cth)
Family Law Rules 2004
Evidence Act 2008 (Vic)

Donnell & Dovey (2010) FLC 93-428
Mulvany & Lane (2009) FLC 93-404

APPLICANT: Mr Wafula

RESPONDENT: Ms Batley

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 9694 of 2015

DATE DELIVERED: 26 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATES: 22 February 2019 – 1 March 2019, 12 March 2019 – 15 March 2019, 1 April 2019 – 9 April 2019, 29 April 2019 – 3 May 2019, 7 May 2019 – 15 May 2019 and 21 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bryan

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Ms Lane

SOLICITOR FOR THE RESPONDENT: Coote Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. All extant interim parenting orders be discharged.

2. The father have sole parental responsibility for the child X born … 2015 (“the child”).

3. The child live with the father.

4. The child’s time with the mother be reserved.

5. The father keep the mother informed of the details of the child's treating health professionals and his childcare, kindergarten or school enrolment details at any given time, but only if the mother provides the father with an email address at which to contact her for this purpose (“Mother's Email Address).

6. As soon as practicable the father:

   a.authorise the child’s treating health professionals to communicate with the mother about the child's health and medical care;

   b.authorise the child's childcare, kinder or school (as the case may be) to communicate with the mother about the child’s educational progress and provide, if the mother so wishes, copies of all emails, notices, letters, school reports and school photographs usually circulated to parents; and

7. The father be at liberty to provide a copy of these orders to the child’s childcare, kindergarten, school and treating medical practitioners.

8. If requested of the father by the mother in writing, the father keep the mother informed via the Mother's Email Address of his current residential address and contact telephone number(s) and notify the mother by email of any change to these details within forty­ eight (48) hours of the change occurring.

9. The requirement for the mother's consent to be obtained before a passport issues for the child be dispensed with.

10. Until further order the mother MS BATLEY by herself, servants and/or agents, be and are hereby restrained from removing the child X born … 2015 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names 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 further order of the Court.

11. As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

12. The parents, by themselves, their servants and/or agents be and are hereby restrained from:

    a.denigrating the other party or members of the other parent's family in the hearing and/or presence of the child, including discussing these proceedings, or any other legal proceedings involving the parties, with him or within his hearing, or allowing the child to remain in the vicinity of other persons engaging in such behavior; and

    b.causing the child to be registered, enrolled, listed or known anywhere by a name other than "X".

13. Until further order the mother, by herself, her servants and agents (including the maternal grandparents), be and are hereby restrained from:

    a.attending within 500m of the father's home; and

    b.being within 500m of the father and/or the child.

14. In the event that the maternal grandparents spend time with the child pursuant to an arrangement with the father, they, by themselves, their servants and/or agents, be and are hereby restrained from permitting the child to see or spend time with the mother, unless agreed in writing by the father.

15. On or before the expiration of seven (7) days, the mother, by herself, her servants or agents, do all acts and things necessary to communicate to the Department of Human Services (Child Support) that pursuant to s 71A of the Child Support (Registration and Collection) Act 1988 (Cth), all of the father's payments for supervision services at D Contact Service (save and except for the payment pertaining to 27 October 2018) were intended by the parties to satisfy, in equivalent dollar amount, child support payable by the father to the mother at the relevant time.

16. In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders (including but not limited to paragraph 14 hereof), then pursuant to s 106A, a registrar of the Court be permitted to execute all deeds, documents and instruments in the name of the defaulting party and do all acts and things necessary to give validity in operation to such deeds, documents and instruments.

17. All extant applications be dismissed.

18. The appointment of the independent children's lawyer be discharged.

IT IS DIRECTED THAT

1. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

AND THE COURT NOTES THAT

A. The father is willing to facilitate Skype, telephone or like telecommunication between X and the maternal grandparents (or either of them), and between X and Y, up to twice per week in accordance with the recommendations of the family report writer.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wafula & Batley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 9694 of 2015

Mr Wafula

Applicant

And

Ms Batley

Respondent

REASONS FOR JUDGMENT

1. This case concerns the parenting arrangements for the child X born in 2015, currently four years of age (“the child”).

2. At the commencement of the hearing the Court was presented with very stark choices in circumstances where the mother’s case was that, in the event the Court made orders for the child to spend unsupervised time with the father she would commit suicide. In response to the orders the mother sought the father amended his application to seek orders that the child live with him. It was the father’s case that if the Court made the orders sought by the mother there would be little to hold him in Australia. However, he also said that he would do his best to come to Australia to see the child. 

3. Although since the commencement of the final hearing interim orders have been made for the child to live with the father, it still remains for the Court to make final parenting orders. The proceedings are now undefended and in circumstances where the mother has not only withdrawn from the proceedings but in an email sent from the maternal grandmother, which reads as representing the views of the maternal grandparents and the mother, advised the Court that they do not propose for the “moment” to spend time with the child. In these circumstances there is a certain inevitability about the outcome of the case particularly with respect to where the child should live. Notwithstanding the mother’s position, it is the father’s case that it would be in the child’s best interests to have a meaningful relationship with both of his parents, and to that end he seeks orders making provision for the child to spend supervised time with the mother.

4. The mother’s treating psychiatrist Dr A gave evidence that notwithstanding the pervasive nature of the mother’s beliefs, there have been occasions when it has been possible to challenge those beliefs. Counsel for the father submitted that the Court should make findings in particular with respect to the mother’s allegations about the father’s conduct on the basis that when confronted with the Court’s findings the mother might reconsider her position and reengage with the child.  Although there was a great deal of evidence which makes this exercise more complicated and these reasons lengthier than would usually be the case in what were ultimately undefended proceedings and there is no guarantee that the mother will change her views. I propose to adopt this course.   

Background And History Of Proceedings

1. The mother MS BATLEY born … 1993 (age 26) (“the mother”) and the father MR NETO WAFULA born … 1988 (age 30) (“the father”) met and commenced their relationship in African Country B in or about November 2013. They married in Country B in late 2014.  

2. The mother is an Australian citizen of Aboriginal descent. The father was born in Country B. The father arrived in Australia in mid-June 2015 shortly prior to the child’s birth and has remained in Australia.  He now has permanent residency. It is the father’s evidence that, should he be successful in these proceedings, he proposes to continue living in Australia.

3. The father’s case is that he and the mother separated on 4 September 2015. The mother for her part asserts that the marriage had ended prior to the child’s birth. In my view whilst not much turns on whether they separated before or after the child’s birth this does highlight the different ways in which they portray the history of their relationship and gives some insight into the reasons for and the way in which the parties put their cases. What is clear is that the father left the maternal grandparents home where he and the mother were living on 4 September 2015.

4. The mother says that she contacted Victoria Police on 5 September 2015 to seek their advice and was advised that given her concerns for her safety and the child’s safety she should apply for an intervention order. On 9 September 2015 the father was served with an Interim Intervention Order.  In support of her application the mother relied upon what she said had occurred on 4 September 2015, when the father left the maternal grandparents’ home.

5. On 23 September 2015, the father consented to a Final Intervention Order without making any admissions. It is his evidence that he did so because he was mindful that the mother suffered from depression and, based upon his version of what had occurred on 4 September 2015, he believed that the mother still loved him and he held some hope that the marriage was not at an end. I accept the father’s evidence which is in my view consistent with other parts of the father and mother’s evidence and the recording that the father made of events on 4 September 2015. I am mindful that the father, being the person making the recording, was able to present himself in a positive light and on that basis I do not place significant weight on the recording from that point of view. Although the mother was at times distressed I am not satisfied on the balance of probabilities that the mother as evidenced by that recording was in fear of the father. Her reaction was in my view more likely one of distress as a result of the breakdown of the relationship rather than fear of the father as she now asserts.  

6. In March 2016, the mother applied to extend the intervention order but withdrew that application she says on advice from her solicitors and because of comments made by the presiding magistrate that it would be difficult to extend the intervention order in circumstances where there had been no significant breach of the order.  Although the mother also deposes that she continued to feel scared of the father, she has not applied for a further order nor, significantly for the purposes of the matters I must determine, does she depose to any incident or incidents since separation that might support such an application.  

7. On 5 October 2015, the mother says she received a letter from the father’s solicitor in relation to the child spending time with him. On 9 October 2015 her then solicitor advised the father’s solicitor that the mother would agree to the child spending time with the father provided that the time was supervised by either a contact centre or the maternal grandparents.

8. Having not spent any time with the child since he left the grandparents’ home, on 15 October 2015 the father filed an Initiating Application seeking orders that he and the mother have equal shared parental responsibility for the child, that the child live with the mother and spend increasing time with him, that he be registered as the father on the child’s birth certificate and that the child be known as X Wafula Batley. The matter first came on for hearing on 20 November 2015 and on that date orders were made by consent for the child to spend time with the father as agreed and in the absence of agreement one hour per week with the father supervised by C Aboriginal Co-operative (“C Co-operative”). Thereafter, the child spent supervised time with the father until March 2016 when C Co-operative withdrew its services. There was then a period of some seven months when the child did not spend any time with the father. The orders also provided that the parties were to do all acts and things and sign all such documents as may be required to ensure the father’s registration on the child’s birth certificate. This did not occur and it remained an issue when the final hearing commenced and continued to be an ongoing issue during the hearing.

9. On 6 May 2016, the mother filed a Response to Initiating Application seeking inter alia both final and interim orders for sole parental responsibility, that the child live with her and that he spend time with the father on a supervised basis at D Contact Centre (“D Centre”). The father filed a Reply on 11 May 2016, in which he sought inter alia final and interim orders for equal shared parental responsibility, that the child live with the mother and that the child spend supervised time with him at D Centre for a minimum of one hour per week, and supervised time at a location specified by E Contact Service (“the Contact Service”) and supervised by the Contact Service for three periods of a minimum of one hour per week. He also sought final orders for unsupervised time with the child on an increasing basis. He again sought orders with respect to his name being registered on the child’s birth certificate.  

10. Although on 11 May 2016 the parties consented to orders for the father to commence time at D Centre, the child did not spend any time with the father pursuant to these orders. On 22 August 2016, further orders were made by consent which provided for the child to spend supervised time with the father utilising the Contact Service for two hours twice per week at the father’s expense.  The father was also required to submit to testing, at his expense, for amphetamines, mira, cannabis, opiates, sedative type drugs, cocaine and other drugs of abuse at the request of the mother’s solicitor on up to three occasions prior to the adjourned date. The child commenced spending time with the father at the Contact Service on 7 October 2016. Due to the cost the father was unable to continue spending time with the child and time supervised by the Contact Service ceased on 25 May 2017.

11. On 5 July 2017 the matter was listed for hearing before Justice Cronin. His Honour discharged the previous orders and made orders by consent for the child to spend time with the father at his expense on a supervised basis at D Centre on such dates and at such times nominated by D Centre, or with another contact service or supervisor as nominated by the ICL for two hours per week at times nominated by the private supervisor. Time did not commence at D Centre until 7 April 2018, the child by then not having spent any time with the father for almost 12 months. The reasons for that time not occurring were in dispute, the father alleging that the mother had not done what was required of her to have the child placed on the waiting list and commence time at D Centre and the mother denying that this was the case.  

12. On 21 July 2018, the father filed an amended Reply seeking inter alia orders for equal shared parental responsibility, that the child live with the mother and spend gradually increasing unsupervised time with him. He also sought an order that the child be enrolled in kindergarten or an early childhood development program for not less than 10 hours per week. The father again sought an order requiring the mother to register his name as the child’s father on the birth certificate within 14 days.

13. Although on 16 August 2018, the mother filed an Amended Response seeking orders that she have sole parental responsibility for the child and that he live with her. She otherwise sought to be excused from particularising the orders she would be seeking until after the release of the family report and the report prepared by D Centre. She did however propose during her interview with the family consultant Ms G on 19 November 2018 that the child continue to spend two hours per fortnight with the father supervised by D Centre and that future arrangements be dictated by the child’s response to that time with the father.

14. On 30 October 2018 and for reasons unrelated to the parties the final hearing on 17 December 2018 was vacated and the matter was listed for final hearing before me commencing on 25 February 2019. 

15. On 12 February 2019 the matter was listed for mention before me. During this mention the mother sought leave to rely upon the recent reports prepared by her treating psychiatrist Dr A, her mental health nurse Dr Q, and her general practitioner Dr H, updating the evidence with respect to her mental health and, as a consequence of her mental health, the likely impact of the child spending unsupervised time with the father.  Counsel for the father opposed the mother being permitted to file and rely upon this further evidence. In circumstances where the family consultant was able to see the parties, consider this further evidence, and prepare an updated report prior to the final hearing, I acceded to the mother’s application.

1. On 21 February 2019 the mother filed her Outline of Case in which she set out the orders she sought as follows:

   ·That she have sole parental responsibility for the child;

   ·That the child live with her;

   ·That the child spend three hours with the father on one occasion per year at a supervised contact centre in the capital city nearest to where the mother resides;

   ·That the she provide the father with the name of the kindergarten or school the child attends and notify him of any serious illness or injury; and

   ·That the father be permitted to send the child letters and cards to a PO Box nominated by the mother and that she ensure that the letters and cards are provided to the child.

2. The father thereafter amended his case to seek orders inter alia for sole parental responsibility, that the child live with him, and that until the child commences Grade One he spend time with the mother for up to 12 hours per week in sessions of up to six hours per visit supervised by D Centre, C Co-operative, Ms E (or her nominee) or another professional supervisor as agreed, such time not to take place during kindergarten or school hours. He further proposed that upon the child commencing Grade One, the child spend time with the mother each alternate weekend from 10.00am Saturday to 5.00pm Sunday during school term, for three consecutive days in each school term holiday and for two periods of three consecutive days during the long summer holidays, and on Christmas Day and Christmas eve in alternating years, with either the maternal grandfather or grandmother to be in substantial attendance at all times and subject to a report from the mother’s treating psychiatrist indicating that the mother is not a danger to herself or the child.

3. The mother made no proposal for the child to spend time with her in the event that the Court made orders which provided for him to live with the father it being her case as deposed to and as set out in the Outline of Case filed on her behalf that “due to the likelihood of suicide there will not be a need for the father to promote or facilitate her involvement in [the child’s] life.”

4. The final hearing commenced on 25 February 2019 and concluded on 21 May 2019. The matter was listed for hearing on 29 days over that period. Although listed, for various reasons there were whole days and parts of days when the matter could not proceed. The reasons included the mother being unable to give instructions to her counsel, the explanation for that being that she had had a panic attack, and a number of other days when she said she was unable to attend because she had a migraine. The mother was also frequently late to Court or not in the courtroom when the hearing was due to resume. There were also occasions when the mother did not attend at all, including one day when she took the child to the zoo instead of being at Court.  The background to what occurred on that day is important in the context of the mother’s decision to withdraw from the proceedings.  

5. During the maternal grandfather’s cross-examination he said that given some breathing space the mother might change her mind in relation to the child spending time with the father.  Notwithstanding the mother’s case that she would commit suicide if the Court ordered that the child spend unsupervised time with the father and that the child’s time with the father to date had been limited to supervised time. On 7 May 2019, day 22 of the final hearing, the parties asked for the matter to be stood down so that they could discuss a possible resolution. Although I was conscious of the need to complete the hearing, I agreed to allow the parties time for some negotiations mindful of the fact that a resolution might avoid what could be the significant consequences for the child of the litigation and its outcome.

6. When the parties were unable to resolve the matter the mother made an application for an adjournment of the matter for six months with the child to spend increasing time, including unsupervised time, with the father. It was her proposal that, by the time the matter was relisted in November, the child would be spending six hours per week with the father, from 9.00am to 3.00pm each Saturday. This was opposed by the father and not supported by the ICL. It being day 22 of the hearing and in circumstances where it was open to the mother to put this proposal at the conclusion of her case, I dismissed the mother’s application for an adjournment.  

7. Two days later, day 24 of the hearing, I was advised by counsel for the mother that her instructions had been withdrawn and she was seeking to be excused from further attendance. The mother was not present at Court. Later that day, having already excused her counsel from further attendance, I was advised by the mother’s solicitors that they had been trying to contact the mother to get instructions however she had not returned their calls. They also requested and were excused from further attendance.  The ICL was in telephone contact with the maternal grandmother and it ultimately became clear that rather than coming to Court the mother and the maternal grandmother had taken the child to the zoo.

8. The following day, day 25 of the hearing, the mother was at Court accompanied by the maternal grandfather. The mother sought an adjournment, she said, to enable her to apply for legal aid with a view to instructing new solicitors to act on her behalf. That application was opposed by both the father and the ICL. The circumstances were somewhat unusual in that the mother had been ably represented by experienced solicitors and counsel and I had already heard a substantial amount of the evidence, including the evidence of both parties. Although once representing herself the mother’s position with respect to which of her remaining witnesses she intended to rely upon or make available for cross-examination changed on a number of occasions, arrangements had already been made for Dr A to attend for cross-examination. This left the mother to re-examine the maternal grandfather, adduce evidence from her mother or any of the other witnesses she was seeking to rely upon, and cross-examine the family consultant. There is little evidence or information as to either the likelihood of success or the timeline for the mother’s proposed application for legal aid.  In these circumstances, and given that she had the weekend to prepare and had the assistance of her father who is a legal practitioner, and in particular having regard to the best interests of the child and the need in those circumstances to complete the hearing, I refused the mother’s application for an adjournment.

9. Although I did not grant the mother an adjournment, I did indicate that I would be reserving judgment and would not be in a position to hand that judgment down until after my return from leave, and that in those circumstances, if the mother were to obtain a grant of legal aid and/or instruct new solicitors, I would consider an application to reopen her case. I also indicated that it would be open to the mother to make her own application to reopen her case in the event that having time to consider the matter she determined that she should have relied upon witnesses she had decided not to call or make available for cross-examination, or where she had not cross-examined the family consultant about a particular issue and now wished to do so.

10. On Monday 13 May 2019, day 26 of the hearing, the mother attended Court alone. Although on the preceding Friday I had told the mother that the maternal grandfather could act as her McKenzie’s Friend, he did not accompany the mother that day. I had also suggested to the mother that she have the maternal grandfather, who as previously referred to is a qualified legal practitioner, help her prepare her questions for Dr A and/or the family consultant over the weekend. However, when I asked the mother at the commencement of the hearing on Monday if she had prepared any questions for them, she said she had not done so. Although the mother again sought an adjournment, the reasons she gave for that adjournment were the same as those advanced on Friday and that application was again refused. The matter thereafter proceeded with cross-examination of Dr A by counsel for the father.

11. As Dr A’s evidence had not been completed the matter was adjourned part heard to the following day, being day 27 of the final hearing. The mother did not appear that day and sent the following email to the ICL, which was read to the Court. It read as follows:

    My family and I have been swamped by disgusting allegations with the apparent approval of the court. When I tried to defend myself from this tirade of abuse I have been repeatedly accused of failing to show the respect that was denied to me. The rejection of my good faith offer for unsupervised access was ridiculed by the court who advised their clear intention to ignore my fears and concerns for [the child’s] wellbeing.

    Due to severe financial distress (cost is over three almost four times what we were initially advised) and the refusal of our representative to complete the trial pro bono after over $300k in fees. We have no legal representation, a refusal to give time to secure legal aid or pro bono support and a determination by the court to proceed regardless with or without my attendance. No firm will touch the case without there being an adjournment, I can not [sic] get a barrister.

    My family and I have done everything possible to protect [the child]  and provide a loving and safe environment which has been ridiculed by all parties and the court. I am not able to continue attending court and continue to listen without the chance to have legal representation. I am not in a position to re-examine or cross examine at this late stage given the amount of evidence and no time given to allow me to revise.

    [The child] is safe, and I will continue to Follow [sic] the court orders. Despite [the child] not being at risk with me.

    Ms Batley

12. The “court orders” the mother referred to in her email were the orders made on 28 February 2019, day 4 of the hearing, after I was advised by counsel for the mother that she was unable to obtain instructions from her client and that the mother had left the Court and was returning to J Town. In the absence of any evidence as to the status of the mother’s mental health on that day and in circumstances where the mother’s case was that she would commit suicide if orders were made for the child to spend unsupervised time with the father, I made orders to the effect that the child not be left unsupervised in her care, with the maternal grandfather, the maternal grandmother, and at a later date a family friend, agreeing to keep the child in sight at all times.  

13. As a consequence of the mother’s withdrawal from the proceedings, counsel for the father made an oral application for the issue of a recovery order. Although as referred to in the reasons delivered that day my initial view was that I should make a recovery order but stay that order to give the mother an opportunity to deliver the child to the child minding room at the Court. I was ultimately persuaded by counsel for the father, supported by the ICL, that this course of action would risk the very harm the recovery order was intended to prevent.

14. Dr A had been giving evidence that morning and was asked a number of question about the possibility of the mother harming the child. That evidence was as follows (Transcript in Confidence, 14 May 2019, p. 3, (45)):

    Do you have any concerns about [the child’s] safety with Ms Batley, given what has transpired this morning?

    I don’t have any concerns about his physical safety, for a number of reasons, including that he is with his parents [sic] as well. I don’t have any doubt – I don’t have any concerns about his physical safety, in terms of any danger of Ms Batley doing him harm. I don’t have any concerns of that.

    …

    Ms Batley realises or thinks she is going to lose [the child]. It’s fair to say she believes she’s the only person who can really look after him. In those scenarios in this Court there have been examples where people decide better that the child is – if she is going to end her life, that she ends the child’s life as well. Is that a possibility...?

    I can’t totally exclude it, your Honour. I guess my – to be honest, my bigger concern would be the potential for her deciding to disappear, if you like, with [the child], rather than actually killing herself and [the child]. That would be just my gut, kind of, concern, knowing her.

    ..

    From your experience?

    ...I can’t believe she would harm [the child] from what I have seen and heard of her. Having said that, I –I don’t put it beyond her to have an impulsive act of doing something when she’s upset with the current proceedings.

    Okay. But if she’s not rational, does that change that? She’s not – if I were to say she hasn’t behaved rationally?

    I understand that. But I – I cannot refute the possibility that that could happen. I have certainly questioned her on that, as you can imagine, on many occasions, with a concern that that might be an issue, given her behaviour and response, and she has been very clear with me all the way through that she would not.

15. Dr A also said that it was likely that the mother was only just recognising that there was a possibility that the Court would make orders for the child to spend unsupervised time with the father and said that “...it is very hard to know how that is going to affect her mental state”. I am satisfied that the mother was not only recognising the possibility of unsupervised time but also the possibility that the child might be removed from her primary care.

16. Ultimately, I determined that leaving the child with the mother was a risk that I was not prepared to take and I acceded to the father’s application, which was supported by the ICL and made a recovery order. The child was removed from the mother’s care that evening and placed in the father’s care where he remains.

17. Having made a recovery order and interim orders that the child live with the father following execution of the recovery order, the matter was otherwise adjourned until Tuesday 21 May 2019 for the evidence of the family consultant and final submissions. The mother was served with the orders adjourning the matter to that date but did not appear. Although at the start of the hearing that day there was some suggestion that the maternal grandparents might appear and make an application for orders that the child spend time with them, they did not do so. Instead the maternal grandmother sent an email to the ICL which as previously referred to purports to represent the views of the maternal grandparents and the mother.  That email said inter alia as follows:

    After much reflection and with deep sadness for Ms Batley and our family, (which we will never recover from) we believe that the best option for [the child] is to reduce his trauma and withdraw from the biased opinions and the degrading statement that are unfounded through the overly detailed protracted forensic approach…

    …

    It is with deep sadness and considering [the child’s] best interest we do not see any role in his life (with [the father] having control) because we do not want to be controlled, told we are the liars, manipulated and abused continually by [the father]. The ongoing trauma it would inflict on [the child] having lost his mother, grandparents and extended family is enough for any child to bear. This is why we feel it is in [the child’s] interests not to have access at the moment. If he comes home he will not want to go back and we can’t bear the pain this will cause to him and the trauma it will inflict on us.

Legal Principles

1. When the Court is asked to make parenting orders the paramount consideration is the best interests of child the subject of the proceedings (s 60CA of the Family Law Act 1975 (Cth) (“the Act”)).

2. Section 60B(1) of the Act sets out the objects of the Act to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. In determining what orders to make in the child’s best interests the Court must consider the matters in s 60CC(2) and (3) of the Act. When considering the matters in s 60CC(2), the Court must place greater weight on the need to protect the child from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence.

4. In Donnell & Dovey (2010) FLC 93-428 the Full Court described the s 60CC considerations as “…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another” (at [103]).

5. In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed at [76] – [77] as follows:

   It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end.  Self-evidently, they are only matters to be considered.  Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant).  However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.

   It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…

   (Original emphasis)

6. As the Full Court opined, some of these s 60CC considerations will be of more relevance than others having regard to the particular circumstances of each case. That is particularly so in this case because of the mother’s decision to not only withdraw from the proceedings but to also remove herself from the child’s life. For example, although the weight that would be afforded to the wishes of the child in this case would be limited by his age, even if he did express a wish to live with the mother that would be of little import in circumstances where it appears that at least for the “moment” she has chosen not to have any involvement in his life. Similarly even if the Court were to be satisfied that the child would benefit from a meaningful relationship with the mother and were to make orders accordingly, those orders would be subject to the mother’s decision. There is also little purpose in considering the practical difficulty and expense of the child spending time with the mother in these circumstances. That being said, I will attempt to give proper consideration to those matters that the Act requires subject to the realities of this case.

7. Unless there are reasonable grounds to believe that a parent has abused the child the subject of the proceedings or another child of that parent’s household at the time or engaged in family violence, the Court must apply the presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child. That presumption can be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the parents to share parental responsibility. If the presumption does apply or the Court is otherwise satisfied that it is in the child’s best interests and makes an order for equal shared parental responsibility, then it must consider whether it is in the child’s best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in the child’s best interests and reasonably practical for the child to spend substantial time with each parent.

The Standard of Proof and The Evidence

1. The standard of proof in this case is the balance of probabilities and in applying that standard the Court must have regard to the nature and subject matter of the case and the gravity of the matters that are alleged in accordance with s 140 of the Evidence Act 1995 (Cth). The allegations in this case are grave as are the consequences of the orders the Court is being asked to make.

2. The father relied upon the following affidavits:

   ·Affidavit of the father filed 18 February 2019;

   ·Affidavit of the father filed 19 July 2018;

   ·Affidavit of Ms K filed 19 February 2019;

   ·Affidavit of Ms L filed 18 February 2019;

   ·Affidavit of Mr M filed 18 February 2019;

   ·Affidavit of Ms N filed 19 July 2018;

   ·Affidavit of Mr N filed 19 July 2018;

   ·Affidavit of Ms L filed 19 July 2018.

3. The mother relied upon the following affidavits:

   ·Affidavit of Ms Batley filed 13 February 2019;

   ·Affidavit of Ms Batley filed 23 August 2018;

   ·Affidavit of Dr A filed 15 February 2019;

   ·Affidavit of Dr H filed 15 February 2019;

   ·Affidavit of Dr Q filed 15 February 2019;

   ·Affidavit of Mr O Batley filed 13 February 2019;

   ·Affidavit of Ms P Batley filed 16 August 2016.

4. The ICL relied upon the following affidavits:

   ·Family Report of Family Consultant Ms G dated 17 December 2019;

   ·Updated Family Report of Family Consultant Ms G dated 22 February 2019;

   ·Affidavit of Dr R filed 4 July 2017;

   ·Affidavit of Ms S filed 25 February 2019;

   ·Affidavit of Ms E filed 17 March 2017.

5. Both the father and the mother relied upon statements of evidence and there were numerous exhibits tendered by counsel for both parties and the ICL. Counsel for the father also relied upon a written submission with respect to the evidence.

6. Many of the parties’ witnesses were not required for cross-examination and although I have read all of the affidavits, their evidence ultimately played little part in the proceedings before me. However, both the father and mother were cross-examined at length. The maternal grandfather was also cross-examined as was the mother’s treating psychiatrist Dr A and the family consultant. Although the maternal grandmother had not filed a trial affidavit, counsel for the mother had sought to rely upon her affidavit filed in August 2016. This was not opposed by either counsel for the father or the ICL. Ultimately the mother did not seek to adduce evidence from the maternal grandmother nor in those circumstances was she cross-examined.  

7. Although the father spoke English well I am mindful that it is not his first language and on occasions he appeared not to understand the underlying nuances of some of the matters that were being put to him or how they were put. Notwithstanding this was the case, he was a good witness and I am satisfied that he was doing his best to tell the truth. He was open and forthcoming in cross-examination and readily made concessions when in my view it was appropriate to do so. By his evidence he demonstrated a significant degree of insight into the difficult issues in this case and the likely impact particularly upon the child of the orders he was seeking and those sought by the mother. The father generally remained composed notwithstanding that it would have been difficult for him to listen to the allegations made about him, however he was visibly affected by the evidence in relation to the reports of what the child had said about him during supervised time.

8. The mother was not a good witness. There were some parts of her evidence which were likely to be quite difficult for both parties, in particular the evidence with respect to the alleged family violence and rape which was denied by the father. Arrangements were made for the father to be in another courtroom during the mother’s cross-examination.  Apart from when she was in the witness box the mother sat at the back of the courtroom as far away from the father as she could get and my initial impression was of someone who was apprehensive about the father’s presence and the proceedings generally. However, the mother’s presentation in the witness box did not accord with my initial impression of her whilst seated at the rear of the courtroom. The mother was at times argumentative, sometimes sarcastic and often quite uncooperative. At times she appeared to be quite angry and there were a number of occasions when she was quite rude to and dismissive of counsel for the father and on at least one occasion, to me.  There were also occasions when the mother seemed to want to engage positively with counsel and seemed conscious of creating a more positive impression, however these occasions stood out in stark contrast to the rest of her evidence.  Although being cross-examined was no doubt difficult for the mother, in my view her behaviour was not behaviour the Court should or would normally tolerate. However, in this case the mother was given significant leeway because of my concerns about her mental health and because I did not want to precipitate her causing herself or the child any harm.

9. It was difficult to make sense of the mother’s presentation in the witness box both in the context of the allegations in this case and generally. Dr A was asked about the mother’s behaviour in her adolescence and he said as follows (Transcript in Confidence, 13 May 2019, p. 18, (30)):

   I have to admit that she was a very difficult young woman to treat and manage, not only in my room but also with her family and with regards to her relationships with teachers and her peer group, and she was very angry and difficult to engage for periods of time. 

10. During cross-examination Dr A also said of the mother’s behaviour that “my experience with her in the past in her adolescence and including with me, I have to say, would be that when she was angry and upset she would be very difficult and rude and problematic” (Transcript in Confidence, 13 May 2019, p. 19, (15)). When I described my observations of the mother in the witness box to Dr A, he agreed that the behaviour I described was similar to the behaviour he was describing albeit that he also said that he was surprised as he had not seen that behaviour for a long time.

11. Even when the mother was more co-operative she frequently tried to avoid answering questions which I am satisfied she perceived might not be helpful to her case. I am also satisfied that although the mother was at times quite insistent about the accuracy of her version of events, at other times she would say she did not recall in order to avoid answering the question she was being asked. I observed a similar pattern when the maternal grandfather was being cross-examined. I am also satisfied based upon my observations of her evidence that the mother would ask for a break not only because of the sensitivity of the particular evidence but in order to avoid or at the very least delay having to answer the questions she was being asked.

12. Whilst I am mindful that the mother was cross-examined at length and that the cross-examination included extensive reference to her mental health history and the allegations of family violence and the alleged rape which most litigants would find confronting that was unfortunately inevitable given the way in which she put her case. I have also had regard to Dr A’s evidence that the mother “...is in danger of being triggered to regress to past behaviours at times of great stress” and that “...when triggered to that emotional state she is unable to control her emotions” (Transcript in Confidence, 13 May 2019, p.19, (40)). Dr A said he hadn’t seen any evidence of the mother’s more difficult behaviour for many years, however he agreed that it would appear that the mother’s behaviour in Court might suggest she had regressed.   Although the stress of the hearing might to some extent explain the mother’s behaviour during the final hearing that does not give me any more confidence in her evidence or, more importantly for the purposes of the decision I must make, her mental health and how that would be likely to impact upon her capacity to parent and the child’s wellbeing on an ongoing basis if he were to remain in her care.

13. As previously referred to there were some striking similarities between the way the maternal grandfather and the mother gave their evidence and on occasions that evidence itself. Despite warning the mother not to discuss her evidence with any of her witnesses, I am satisfied having regard to the maternal grandfather’s evidence that contrary to those warnings it is likely that they did discuss the mother’s evidence. One possible example was during cross-examination when it was put to the maternal grandfather that it was somewhat inconsistent that the mother had said that she was not ready to discuss the alleged rape with Dr A until July 2016 when she had disclosed it to D Centre months earlier during an orientation session in circumstances where even on her own evidence she did not trust D Centre. The maternal grandfather explained this inconsistency on the basis that it was he who had disclosed the alleged rape to the workers during this session, not the mother. This was the first time that he had given this evidence, and the mother herself did not give this evidence when these matters were put to her.

14. Although it may not be surprising given the mother’s history of mental health issues and suicide threats, that the maternal grandfather would do and say whatever he considered was necessary to support the mother. What that means for the purposes of the decision I must make is that his priority is likely to be the mother and not the child in this case. Based upon his evidence I am satisfied that is the case.

15. The maternal grandfather’s evidence also left me with the impression that despite saying he had tried to get the mother to reconsider the way in which she put her case and agree to the child spending unsupervised time with the father, ultimately he did not really analyse or more importantly challenge the mother’s version of events or the basis of her views of the father. To the contrary he seemed to have accepted whatever the mother said and adopted her narrative.

16. I found the father’s evidence much more convincing than the evidence of either the mother or the maternal grandfather and generally speaking when there is a conflict between the evidence of the father and their evidence I prefer the father’s evidence. Although I generally prefer the father’s evidence, that does not mean that I will make findings in accordance with his evidence whenever there is a dispute between his evidence and the mother’s evidence and, notwithstanding that the father’s application was ultimately uncontested, I will as I am required to do consider and weigh up all of the evidence in relation to the matters about which I am required to make findings.

Issues

1. The mother acknowledged and I am satisfied having regard to her evidence that it was her belief that a relationship with the father would be of little or no benefit to the child. In summary it was her case that the father’s presence in her life was a constant reminder of his “deception, lies, manipulation and abuse”, family violence and the alleged rape. The prospect of the child spending any more than the limited time she proposed would in those circumstances be likely to have a significant impact on her mental health and diminish her parenting capacity to the detriment of the child’s health and wellbeing. It was also her case, although less clearly articulated, that the father posed a risk to the child and that given the opportunity to spend unsupervised time with the child, he would manipulate the child and turn him against her. In my view, the mother did not adequately explain why if the child’s time with the father was supervised time it should be limited to three hours once per year in circumstances where the child had been spending regular supervised time with the father.

2. In her report dated 7 December 2018 (the “first report”), the family consultant Ms G identified the following risk factors:

   ·The mother’s allegations of family violence and abuse;

   ·The mother’s allegations with respect to the father’s alcohol consumption and the use of illicit drugs;

   ·The mother’s mental health; and

   ·The mother’s allegations with respect to the possibility of the father attempting to return to Country B with the child.

3. The mother did not adduce any evidence in support of her allegations of the father’s alcohol consumption and use of illicit drugs which, apart from an admission that he and the mother had both used marijuana while in Country B, were denied by the father. The father did undertake drug testing pursuant to the orders made 22 August 2016, without any admission on behalf of the father for the necessity for the same. On 16 November 2016, the father’s final urine screen, he returned a positive result for opiates. It was the father’s case that this positive test result was attributable to cold medicine he was taking at the time. I am satisfied on the balance of probabilities, consistent with the views of Ms G, that the father’s alcohol consumption and/or illicit drug use are not a risk for the child.

4. There was no evidence of the father having taken any steps to remove the child from the Commonwealth of Australia or that he had any intention of doing so. I also note with respect to the possibility of the father attempting to return to Country B with the child that the mother did not seek orders placing the child on the Airport Watch List until she filed her Amended Response in August 2018, in which she sought final not interim watch list orders. It was not until I made orders during the final hearing that the child not be left unsupervised with the mother, that orders were made placing the child on the Airport Watch List.    

5. In her first report Ms G also referred to other risk factors she had identified during the course of her assessment which included the lack of a co-parenting relationship between the father and mother, the characteristics of an enmeshed relationship between the mother and the child, and the potential for psychological distress and separation anxiety problems for the child.

The Mother’s Mental Health

1. Ms G referred in her first report to the mother having been diagnosed with Borderline Personality Disorder noting that the mother had told her that according to a more recent diagnosis she no longer fulfilled the relevant criteria for Borderline Personality Disorder. This was consistent with the report of Dr A responding to correspondence from the mother’s solicitor dated 23 January 2019 in which he opined that he did “not believe she currently fulfils a DSM-5 diagnosis for mental illness”. Dr A tempered his opinion on the basis that he had only seen the mother intermittently since 2017, and that her psychological and emotional distress had been totally focused on her concerns regarding the child’s contact with the father and that he had not “seen evidence that would fulfil criteria for Borderline Personality Disorder”.

2. However during cross-examination Dr A observed inter alia as follows:

   ·That whilst a person might not have the requisite five criteria for a diagnosis of Borderline Personality Disorder, that person could still have “a difficult emotional landscape”;

   ·With respect to the mother that it did not surprise him that with “…a significant and major trigger she will regress to past ways of behaviour and personality style and, yes, I think with a further significant trigger in the future I still think, yes, there would be a risk that she would deteriorate and regress again in the future”;

   ·Referring to the mother’s behaviour during the hearing as described to him that the mother may have regressed;

   ·That the mother’s decision to put her case on the basis that she would commit suicide if orders were made for the child to spend unsupervised time with the father demonstrated some impulsivity in terms of her decision making; and

   ·That anyone threatening suicide is psychiatrically unwell.   

3. In his report Dr A described the mother as having “…a particular personality style characterised by strong personal views on “right and wrong” which when formed could be enduring and consuming. Given this ongoing aspect of her personality, she continued to present with fluctuating affect at times when confronted by situations in which she believed injustices were being rendered to her (or others close to her). In my experience with her over time, my perception has been that she comes to these conclusions (of injustice done to her, or to those close to her) after much consideration and reflection. However, once formed they cause much distress and have not been amenable to change”. Dr A also said that the mother continues to have a personality style that is resistant to change, driven by a sense of personal injustice and that his personal experience of the mother has been that this perceived injustice “has always been real and justified from the evidence provided to him”.

4. However, in this case the father denies the allegations upon which the mother relies in support of her case that he is a risk to the child directly and which underlies what she says will be the impact upon the mother’s mental health and her ability to parent and, indirectly, the welfare of the child. Much of the evidence in this case has focused on these allegations and whether there is in fact a basis for the mother’s strongly held views. It is the father’s case that the mother’s strongly held views, lacking foundation, expose the child to a psychological risk. Having considered all the evidence I am satisfied that this is the case.

The Mother’s Allegations with Respect to the Father’s “Deception, Lies and Abuse”

1. As the proceedings were ultimately undefended I do not intend to traverse each and every one of the mother’s allegations, however in my view it is important to assess and hopefully understand the way in which the mother’s sense of perceived injustice may have developed and whether there is any foundation for the conclusions she reached and asked the Court to draw about the father.

2. I propose to turn first to the documentation submitted by the maternal grandfather and grandmother to the Department of Home Affairs, formerly the Department of Immigration and Border Protection (“the Department”) in support of the father’s visa application. In my view these documents highlight the development of the negative view the mother and her family formed of the father over a relatively short period of time.  

3. The maternal grandfather swore a statutory declaration on 3 March 2015 a matter of six months before the father was asked to leave the maternal grandparent’s home. In that document the maternal grandfather, having spent time with the father and mother in Country B, described their relationship as “genuine and continuing” and said that they were planning for “a long term future”. He also described the father as having a “strong work ethic, setting up and trying to grow his business with 1-2 employees. While on safari with us [the father] was in regular contact with his business discussing stock orders and quotations. [The father] has travelled, spending time in Europe and is confident and well-spoken and presents himself very well”. He went on to say that he had met the father’s family and that “they impressed me as being very close, culturally aware and driven to succeed with strong Christian beliefs”.

4. The maternal grandmother in her statutory declaration in relation to the father’s visa application made on the same date said that she had known the father for 14 months and that she was informed on a daily basis by Facebook and text message of the mother’s activities in Country B, and was aware that the father was a “protective chaperone”. She went on to say that she truly believed that the father and mother’s marriage was genuine and that she was “confident that the relationship will flourish and grow in strength over their life time together”. The maternal grandmother stated that her belief was based on personal observations of the mother’s activities and went on to say that the father and the mother “have known one another for 17 months and the consistency of ongoing commitment is obvious in the previous statements. [The father] has been raised by his parents to be honest and hard working and to practice his catholic values…. My husband and I travelled to Country B in November 2014 and were pleased to hear that during our stay in Country B, [the parties] would be married in late 2014 with all the family and friends present to celebrate the occasion. [the parties, maternal grandfather and I] went on safari for 3 weeks and I can personally express the relationship between [the parties] was strong. They discussed options, listened to one another. They consistently, visually expressed how they felt towards one another in our presence (as parents) by holding hands, giving kisses to one another and being normal in two people being in love. You can tell if a relationship is an act, and I can definitely say that [the parties] love one another and should be allowed to be together and share their lives with one another, especially with the impending birth of their first child in August 2015”.

1. At around this time the mother was sending messages to the father who was in Country B waiting for his visa to be issued so that he could join her in Australia. For the most part those messages were consistent with the relationship described by the maternal grandparents in their statements to the Department, albeit not for example the email the mother sent the father on 15 May 2015.

2. At 3.28pm on 4 September 2015, before the father had even left the maternal grandparents home, the mother sent an email to the Department confirming that she was withdrawing her sponsorship for the father’s Temporary Partner Visa. She gave the following explanation for doing so:

   Since [the father’s] arrival into Australia, [he] asked for forgiveness and another chance. Loving [the father] I wanted it to work, I wanted our marriage to continue, I loved him with my whole heart. Not once did I think something like this could happen, that I would be emotionally and psychologically abused and used. We have been to two counselling sessions in J Town to try and work through what has happened, however the lies have continued, the deception has continued and I am unable to be with someone who lie, cheats, abuses, deceives, uses, and manipulates others. I went into our relationship, our marriage whole heartedly, returning home to Australia for work and university in January 2015, I remained honest, and faithful to [the father] however, unfortunately [the father] did not…

   The mother gave various reasons for her decision including but not limited to that the father had been involved with other women after she returned to Australia, that he had not been honest with her about money she had given him, that he had conned money out of a man in Country U and that he had used her name to elicit donations for a boy he claimed the mother had introduced him to. The underlying theme of her complaints was that she had been taken in by an African man wanting money and the chance to live in Australia. These complaints were repeated by the mother and the maternal grandfather during their respective cross-examinations. The mother also gave the father a handwritten letter on 4 September 2015 in which she focused on the father’s alleged infidelities, which I note the father denies. 

3. The maternal grandparents also made further declarations to the Department, although like the mother on this occasion they were in opposition to the father being granted permanent residency. On 18 September 2015, the maternal grandfather swore a statutory declaration in effect withdrawing his support for the father’s application for permanent residency based on, inter alia, his belief that the father is “an ongoing risk to other women and is unlikely to pass any character test”. He gave as his reasons the following:

   ·[1] I now believe that the relationship was genuine ONLY on behalf of my daughter [the mother] and that she was being used to fraudulently obtain a visa;

   ·[2] That [the father’s] behaviour / actions after my daughter returned to Australia in January 2015 following their marriage, demonstrated that he was unfaithful and an accomplished liar who when confronted with the evidence and told that the relationship was over, [the father] broke down crying and pleading to come to Australia and for another chance;

   ·[3] That money sent to [the father] to purchase stock for his business was redirected for personal use, he was a part owner, not the owner of the business as previously advised;

   ·[4] My daughter informed me that, upon arrival in Australia she discovered that [the father] has communicated with another woman (Ms AA) in Country B professing his love, while lying in bed with my daughter, he suggested to Ms AA that he gives her a male name (Mr AB) and that they communicate in native language so my daughter would not understand, when confronted he again broke down and pleaded to be able to stay at least for the birth;

   ·[5] My daughter wanted to make the marriage work but it was doomed due to [the father’s] actions and behaviour, my daughter is now scared of being alone with [the father] due to his unpredictable behaviour and anger if he is questioned.

4. The maternal grandmother’s statutory declaration made the same day, although it referred the mother having told her that she felt uncomfortable when the father stood over her when she was breast feeding, was similarly focused on the father’s unfaithfulness, lies and deceit.

5. It is clear that at this point of time the maternal grandparents had turned against the father, notwithstanding that they had no knowledge of either the alleged family violence or the rape, and that they had done so based upon their perception of the father’s conduct which I am satisfied was to a large extent based upon what they were being told by the mother rather than their own experience.  

6. In my view, particularly in circumstances where the mother’s personality style is characterised by such strong personal views, it is helpful to analyse the allegations upon which those views are based and which also appear to have informed the views of the maternal grandparents. I propose to address in particular the mother’s belief that the father was not honest about his real name, the allegation that he had attempted to extract money from his business partner in Country U, and finally the allegation in relation to the father being stopped from leaving Country B because he was found to be carrying counterfeit currency.

The father’s name

1. In her trial affidavit the mother deposed that the father had “a history of interchanging his name on various identification documents in Country B and Australia”. In cross-examination it was put to the father by counsel for the mother that he had deceived the mother about his surname and that he had represented to the mother and in various documents, including official documents which were tendered in evidence before me, that his surname was Neto rather than Wafula, that he had not corrected the mother when she had referred to herself as Mrs Neto, and that it was not until just before their wedding that the mother had found out that the father’s surname was actually Wafula. The father denied that he had either tried to deceive the mother or had mislead her in any way. It was his evidence that his surname is Wafula, that [Thomas] and Neto are his given names, and that in Country B “...every document that is given to you to fill out asks for given names”. By way of explanation for not having corrected the mother calling herself “Mrs Neto” the father said “if I marry a woman, I don’t give her my Dad’s name, I give her my given name…in my culture I’m not allowed to give [the mother] Wafula. I am supposed to give her Neto because that is my name. And then if we have children I give children my father’s name which is our family name”. I accept the father’s evidence.

2. During cross-examination counsel for the father also put to the mother that she and the father had spoken about the father’s name in August 2014, some months before the wedding, and put to her a text message she had sent to the father on 10 September 2014 in which the mother referred to the father as “[Thomas] Neto Wafula”. I am satisfied that the mother knew that the father’s surname was Wafula and that his given names were [Thomas] Neto some months prior to their wedding.  

3. In my view this is particularly significant in circumstances where one of the reasons the mother gave for not having complied with the orders requiring her to have the father registered as the child’s father on the birth certificate was that she did not know his real name and therefore did not know what name to put on the birth certificate. The mother’s bona fides in relation to this issue are highly questionable in circumstances where she conceded that she had no trouble identifying the father on the document she signed on 2 October 2015 confirming the child’s aboriginality. The obvious inference to be drawn from this particular aspect of the evidence is that the mother knew that the father’s surname was Wafula, and that her reluctance to have the father registered on the birth certificate had nothing to do with not knowing his name. This is consistent with the fact that, having consented to an order on November 2015 requiring the parties to do all acts and things to ensure the father’s registration on the child’s birth certificate, when the final hearing commenced before me on 25 February 2019 the mother had still not complied with this order and that her failure to comply with the order persisted during the hearing before me.

The allegation that the father had attempted to extract money from his business partner in Country U

1. In her trial affidavit the mother deposed to the father having “deceived a Country U citizen by the name of Mr T of approximately $30,000 USD in order to fund his “business” and in order to import a car because he did not have one” when the father already had a car. The mother deposed that the father had taken photos of a car on the street and sent them to Mr T claiming that this was the car that he had purchased.  

2. In cross-examination the father said that Mr T had given him three payments of $10,000 USD each to set up the business premises, purchase equipment and stock, and to buy a truck. Counsel for the mother put to the father an email in which he had suggested to Mr T that he needed money for a truck when in fact he already had a truck. The father’s evidence was that they “...were having a conversation about buying a truck that would be able to deliver any size or… without limitations, it’s not I’m portraying that I don’t have a truck, I am portraying that we need a truck that is able to do everything for the business”.

3. The father was also questioned about whether he had ever been contacted by Norwegian authorities about the alleged fraud. Although he said he had not, he did say that he was called to J Town Police Station and questioned in relation to this allegation. I found the father’s evidence about this issue cogent and persuasive. 

The allegation in relation to the father being stopped from leaving Country B because he was found to be carrying counterfeit currency

1. The father was also cross-examined about being in possession of counterfeit currency when he left Country B to travel to Australia in June 2015. The father’s evidence was that when he declared the approximately $4,000 USD he was taking out of Country B, which he said came from V Bank, it was discovered at the airport that some of the notes in his possession were counterfeit. The father admitted that he was stopped from leaving Country B as a result of which he missed his flight but that after being questioned for about an hour he was able to leave albeit he was not able to take the US currency with him.

2. Although I accept the father’s evidence about what occurred, in my view the relevance of this evidence is how it was interpreted by the mother and the maternal grandparents rather than as to whether they or the father should be believed. This allegation highlights the issues with respect to the mother’s allegations generally.

3. Weighing up all of the evidence upon which the mother relied in support of her case as to the father’s poor character I am satisfied that the mother and also the maternal grandfather, who conceded that his knowledge was primarily based upon what he had been told by the mother, have retrospectively drawn together and interpreted conversations and events to support the mother’s narrative of the injustices she has experienced at the hands of the father during the relationship, and her belief that the child would be at risk in his care, disregarding any evidence to the contrary. Viewed individually rather than as part of a pattern of behaviour or conduct as the mother has done, even assuming that the mother’s version of these conversations and incidents is accurate, much of what the she describes is much less sinister than she would have the Court accept. Even if viewed as part of a pattern of behaviour, it does not in my view support or justify the extreme views of the mother or her proposal.

Family Violence

1. In my view the allegations of family violence are in a somewhat different category to those other issues which the mother says justify her distrust of the father, and why she says the child should only spend limited supervised time in his care, and might, if accepted, provide some explanation for the mother’s views of the father, if not necessarily her extreme response. However there is a significant factual dispute between the parties with respect to the history of their relationship and in particular the allegations the mother makes of family violence, including that she was raped by the father shortly after the child’s birth.

2. The mother deposes in her trial affidavit to a number of incidences of family violence that she alleges occurred during the relationship. They include the following:

   ·On 4 January 2015, shortly after their marriage in Country B, the father returned to their home heavily intoxicated after a night out with friends and pushed her into a wall following a verbal altercation;

   ·On 6 January 2015, the father returned home in the early hours of the morning heavily intoxicated. When the mother asked him where he had been she says he lashed out, striking her forcefully in her stomach and causing her to lose her balance and fall backwards over the corner of a coffee table, onto the end of a couch and then onto the floor. Although the mother said she insisted that the father take her to the Scan Laboratory, as she was concerned her baby might have been injured during this incident, he did not take her until 8 January 2015. The mother deposed that she did not report this incident to the Country B Police because the father’s father is a senior police officer and she assumed she would not be supported;

   ·The father and mother had argued about the father being involved in a relationship with a Country B girl he had been communicating with online. While the father denies he was having a relationship with this girl, as a consequence of the argument and in order to reassure the mother, the father says he deleted the girl’s contact details and deactivated his social media accounts. The mother says that on 1 July 2015 she and the father argued after she became aware that the father had reactivated his social media accounts. She says that when she confronted the father he grabbed her forcefully by the arm to prevent her from leaving the room, leaving a bruise.

   ·On 3 July 2015, the mother confronted the father about information she had seen on his computer when he gave her access to both his computer and his mobile phone to demonstrate that he was not being unfaithful. She says that the father became angry, that his eyes bulged and his face contorted and that he told her to stay out of his business. She said that she was so worried that the father would strike her that she curled up on the bed to protect herself and her unborn child. She said the father was standing over her and she was crying and that she sent a text message to her mother who came into the room a couple of minutes later at which time the father left the room.

   ·Finally the mother deposes that on 16 August 2016, some months after, at least in her mind, their relationship had ended, and some three weeks after the birth of the child, the father told her that he wanted to have sex. The mother also says that she had attended at W Health the day before in extreme pain and with both a fever and diarrhoea and that she told the father in clear and unequivocal terms that she did not want to have sex with him. She said that the father forced himself upon her and proceeded to rape her. The mother says that afterwards she had a long shower. She said that on 18 August 2016 she sent the father a text message asking how he had felt about this incident to which he replied “...it was ok, just felt weird that you went to shower for so long as if it was dirty or something”. She said she did not report the incident at the time because she was scared and ashamed. 

3. In more general terms the mother asserted that the father was psychologically and emotionally abusive and regularly belittled and humiliated her, particularly when they were living in Country B. The mother’s evidence is that the father was constantly unfaithful and says that when she confronted him he would make her feel unstable and paranoid and use her mental health struggles against her. None of this is consistent with the statements made by the maternal grandparents in support of the father’s visa application or emails sent by the mother at the time.

4. The father presented a very different picture to that painted by the mother.  It was his evidence that the mother was convinced that he was having an affair or affairs and that he was unable to convince her to the contrary. He denied the allegations of family violence and although he said they had had sex on 16 August 2015, it was his evidence that it was consensual.

5. Having heard the evidence of both the father, the mother and the maternal grandfather and considering all of the evidence, I have significant reservations about the mother’s allegations. Although in her trial affidavit the mother deposed to incidents of family violence in Country B on 4 and 6 January 2015 and having to get the father to take her for a pregnancy scan following one of these incidents, she made no mention of these incidents in her email to the Department on 4 September 2015. To the contrary in her email to the Department on 5 October 2015, although it is not clear exactly what proof she is saying the father was confronted with, said that she “…was shocked at how threatening and aggressive he became towards me. I have never seen this side of [the father]”.   In her application for an intervention order the mother did say that the “...violence has been going on for over 9 months..” she did not provide any particulars. In her statement to the Police on 19 August 2016, the mother said she had been assaulted twice whilst in Country B, but again she did not provide any detail of those assaults concentrating instead on her criticisms of the father’s character.  She also made no mention of having had to have a scan. Significantly, in my view she also made no mention of the alleged family violence in her email to the father on 15 May 2015 or the letter she gave to him on the day they separated.

6. There is similarly no mention of the alleged rape in the emails to the Department or the application for an intervention order. Although in her statement to Police in September 2016, the mother said that she had told the maternal grandmother about the alleged rape on 4 September 2015, she also said that the first person she told was her best friend and that she had told her about a month after it happened. Dr A’s evidence was that she did not mention the alleged rape to him until 7 July 2016. He also said that she had told him that she had told the maternal grandmother about the alleged rape for the first time in November 2015 when she and the maternal grandmother were going through text messages for the case and found messages referring to the mother having a lengthy shower in her parent’s ensuite bathroom. I am satisfied that the mother told the maternal grandmother at the earliest in November 2015, and that the maternal grandfather was not aware of the allegation until some months later.

7. Whilst the mother’s explanation that she was not able to talk about the alleged rape might explain why she did not mention it to the Department or include details in her application for an intervention order, and why she did not immediately tell her parents, it would not in my view explain why she would have made no mention of it in her handwritten letter to the father on the day he left the maternal grandparents home. That letter also focused on the father’s infidelities and his dishonesty and deceit and made no mention of either the alleged family violence or rape.

1. The maternal grandfather deposed in his trial affidavit which was filed on 13 February 2019 that the mother had taken a shower for around 40 minutes in his bathroom on the night of the alleged rape and that he thought he had heard her crying. Although he acknowledged that he had made no mention in his police statement of having thought he heard the mother crying by the time he gave evidence during the case he was more definite that the mother was crying. When it was put to him that his evidence was getting more certain with the passage of time he agreed based upon  “…the number of times I have reread everything”. The maternal grandfather also accepted when it was put to him that it would be unusual for the mother to be crying, however also said that he did not ask the mother if she was alright until the following morning.

2. In the statement she made to the Police on 16 September 2019, the maternal grandmother said that she had heard the mother crying  and that she had “… never seen her that distressed before this… I asked her what was wrong but she didn’t answer me... she was sniffling or sobbing as she was walked out. Then I went off to sleep after she left the room.” In my view it is difficult to reconcile the mother’s alleged distress and the response of the maternal grandparents. One would expect that a concerned parent firstly would, unlike the maternal grandfather, ask his daughter what was wrong and would be unlikely, as the maternal grandmother says she did, simply ignore it and go to sleep if her daughter was as distressed as the maternal grandparents would now have the Court accept.

3. The mother relied upon a number of text messages she and the father sent each other following the alleged rape. Those messages made no direct reference to the alleged rape. The mother told the Police that she “really didn’t want to upset [the father] by accusing him of anything in the text messages. I wanted him to admit that he had done the wrong thing by forcing me to have sex with him. I think by him noticing that I showered so long it is an admission on his behalf that he knew it wasn’t right”. I do not agree with the mother’s interpretation of those text messages.

4. Counsel for the father put to the mother that these were not the only messages she and the father had sent each other at that time and called for the mother to produce all of the messages. It was the mother’s evidence that she had changed her phone on a number of occasions and no longer had access to the messages on the discarded phones. The messages produced by the mother were marked “SOS only” which counsel for the father submitted means that those messages were from a phone without a sim card rather than a phone in current use. I accept that that is likely to be the case. In these circumstances, there is some force in counsel for the father’s submission, notwithstanding the mother’s assertion to the contrary, that she has had or perhaps still does have access to messages on phones that she no longer uses and has chosen not to produce those messages. Irrespective of whether there are other messages, those messages the mother did seek to rely upon are in my view more consistent with the father’s version of consensual sex rather than the mother’s assertion that she was raped.

5. The mother did report the alleged rape to the Police, however as submitted by counsel for the father, she did not do so until almost a year later. The father describes being called to the Police station in July 2016 and being arrested and fingerprinted. In February 2017, the father was advised by the Police that the case had been closed.  Not only was the father not charged, there is no evidence of him having any criminal record of any kind let alone a record of any crime of violence. 

6. The fact that the mother did not immediately report the alleged rape to the Police or tell her parents what had occurred and did not report the alleged family violence to the Police during the marriage or her parents until after separation does not necessarily mean that these incidents did not occur as the mother says they did. This is just one aspect of the evidence to be considered in weighing up all the evidence.  

7. In cross-examination Dr A acknowledged the possibility of the mother having a perception of something having happened and that developing into a belief that it had happened. Although he did say that it was sometimes possible to challenge the mother’s beliefs, he also acknowledged that it was difficult to distinguish whether what the mother was telling him was based upon the mother’s experience or a response “generated by her own anger or difficulty”.

8. I am satisfied that as described by Dr A the mother’s beliefs are “pervasive, emotionally consuming and resistant to change”. However, that does not mean that those beliefs are well founded. Although my assessment of the oral evidence of both the father and mother is an important element of the evidence for the purposes of the decision I must make, and notwithstanding that I found the father’s evidence about the allegations of family violence much more persuasive that the mother’s evidence, it is not the only evidence.  Having weighed up all of the evidence, I am satisfied on the balance of probabilities that the incidents of family violence as alleged by the mother and denied by the father did not occur as she described. Similarly, weighing up all of the evidence and on the balance of probabilities, I also accept the father’s evidence that he and the mother had consensual sex on the night of the 16 August 2015. The father’s evidence about the alleged rape was detailed, cogent and in my view consistent with the other evidence.  Whilst the mother may now believe that she is a victim of family violence and that she was raped, I am satisfied that those beliefs are more likely a function of her personality style rather than a rational response to her experience.

Other Section 60CC Considerations

The Child’s Relationship With the Father and Mother And Other Adults And the Benefit Of A Meaningful Relationship

1. I am satisfied that until orders were made removing the child from the mother’s care he had a strong bond with the mother and the maternal grandparents.

2. In her first report Ms G described the father as having “…demonstrated patience and commitment over time in developing his relationship with [the child]. His commitment to [the child] may have been questioned in the beginning when he found himself unexpectedly about to become a father to someone he admits now he hardly knew. However, he has persevered, and each time there has been a gap in his time with [the child], he has followed due process until time has again resumed. He has undertaken relevant courses with D Centre and has also made efforts to self-educate around parenting. [Supervision service] notes from both services demonstrate that he has been most appropriate in the way he has gone about providing [the child] with reassurance and he has approached him with sensitivity to the situation, which is something [the mother] has not demonstrated”.  I accept her evidence, which is consistent with the Contact Service report and the more recent report from D Centre.  

3. Notwithstanding that there were lengthy periods when the child did not spend any time with the father, I am satisfied that despite some initial difficulty separating from the mother, the child presented as being comfortable and at ease with the father. In the report prepared by Ms S and dated 19 February 2019 she described the supervised visits as follows, at page nine:

   The supervised contacts have been extremely positive with the workers observing [the father] and [the child’s] interactions and relationship to be comfortable, joyful and happy. [The father] presents as knowledgeable of [the child’s] needs and development stages. [The child] in turn responds to his father in a relaxed manner. Regular laughter and interaction between father and son is observed.

4. The father’s description in cross-examination of the child and the time they spend together, notwithstanding that after four years that time is limited and is still supervised, provided further insight into the nature of that relationship. I am satisfied that, notwithstanding the mother’s resistance to that relationship, which includes at best not mentioning the father at all in the child’s presence and more likely actively undermining and frustrating their relationship, as demonstrated by the child’s recent comments during supervised time, the father and the child still have a strong and meaningful relationship and that this relationship will develop further with the passage of time.

5. Unfortunately, all that Ms G said about the risks to the child of the father’s absence from his life now apply with respect to the mother as a result of her decision to remove herself from the child’s life.

Providing For The Needs Of The Child, The Responsibilities of Parenthood and The Risk of Psychological Abuse

1. I am satisfied that prior to the commencement of the case the father had given considerable thought to the practicalities of caring for the child in the event that the Court acceded to his application that the child live with him.

2. The father has completed a number of courses at D Centre including a post separation parenting course. I am satisfied having regard to the notes of the various supervisors that he is able to physically care for the child and that as described by Ms G he has “...been most appropriate in the way he has gone about providing [the child] with reassurance and he has approached him with sensitivity to the situation..”

3. Although when she attended her interview with Ms G for the purposes of the preparation of the first report the mother reported that her mental health was well managed and both the she and the maternal grandfather deposed to her functioning well on a day to day basis, particularly in terms of her work and studies, by the time she was interviewed for the second report, as reported by the mother that was clearly no longer the case. The mother in her most recent affidavit described having had to reduce her work and study commitments and to having some difficulty at one of her places of employment. The way in which the mother put her case, her threat to end her life, and her behaviour during the case, was in my view not the behaviour of someone without mental health issues. Dr A having had the mother’s behaviour described to him also acknowledged that the mother may have regressed.

4. It seems that the mother would have the Court accept that if orders were made for the child to spend time with the father for three hours once a year, as she proposes her mental health would once again be stable and that in these circumstances there would be no issue with respect to her ability to manage her day to day life or the care of the child. In my view that is overly simplistic and not supported by the other evidence. The mother has a significant history of mental health issues and whilst on this occasion the trigger for her current issues may be her beliefs about the father and, it follows, her concern about the child spending time with the father or the proceedings themselves, as Dr A said the mother has a history of developing pervasive beliefs which can be “enduring and consuming”.  In cross-examination he also acknowledged the possibility of there being other triggers in the future and the possibility of the mother’s mental health deteriorating as a consequence.  In these circumstances I cannot be satisfied, even if I had acceded to the mother’s application, that her mental health might not have deteriorated or regressed for some other reason unrelated to the father or these proceedings or that those mental health issues would not impact upon her capacity to care for the child.  

5. Even if the mother’s capacity to provide for the physical needs of the child has not been compromised by her mental health issues, I am not satisfied that she has provided for his intellectual and emotional needs or that she has the capacity to do so in the future.

6. The mother and the maternal grandfather reported to Ms G that the child had met all of his development milestones. However Ms G, having observed the child, questioned his social and emotional development and said as follows in her first report (at [85]):

   “… it is expected that children who are who are three years old are able to separate without too much distress from a parent or carer. It is expected that three year olds are beginning to self –regulate and will allow others close to them to assist them to regulate their emotions. Parent reporting and observations on the day indicated that [the child] is not able to separate easily from his mother. On the day of assessment [the child] became extremely distressed when separation from his mother was attempted”

7. Ms G went on to say that it “...may be useful to seek an assessment from a child psychologist or psychiatrist with a view to whether his behaviour and presentation meets the criteria for Separation Anxiety Disorder. If so, a treatment plan can be developed and implemented otherwise [the child] will struggle in situations such as starting kindergarten and/or child care and school” (at [85]). When the final hearing commenced on 25 February 2019, although the mother said she had the child on a waiting list to see a paediatrician in June and despite her own evidence about the child’s difficulty separating from her, it was her evidence  the child did not have Separation Anxiety Disorder. The mother’s evidence about this issue was most unsatisfactory, however it is relatively clear from that evidence that she saw herself as the only person who could and should make decisions with respect to the child’s welfare and I am not satisfied that she would be likely to accept any recommendations not consistent with her own views.   

8. It was clear from the mother’s evidence that she cannot separate her needs from those of the child and cannot prioritise the child’s needs over her own. One obvious example of this is her inability to see the need for the child to have a meaningful relationship with the father or the benefits of him doing so. This is consistent with the evidence of Ms G who in her second report dated 21 February 2019 and released to the parties on 22 February 2019 (the “second report”) referred to the impact upon the child of the “…mixed messages he is receiving when he enjoys a warm, loving and close bond with his father and the seemingly contrasting messages from his mother”.  She also commented on the mother’s ready acknowledgement that she does not support the child having a relationship with the father and that she does not talk to the child about the father. Ms G also referred to the change in the child’s behaviour as documented by D Centre around the time of her second report. It was her view that this was likely attributable to the child thinking that his mother would be angry with him for being there and telling the father he loved him, so the child started telling the father he was “yucky” and that he did not want to see him. This is also consistent with the evidence as reported by the father of some of his conversations with the child after he was placed in his care.

9. An even more significant example in terms of the matters I must determine of the mother being unable to prioritise the child’s needs over her own is her decision to withdraw not only from the proceedings but it would seem, at least for the foreseeable future, from any meaningful involvement in his life. This is particularly so in circumstances where Ms G in her first report had highlighted the importance to the child of having a relationship with both parents and in her second report the likely trauma for the child of separation from the mother in circumstances where he would have no cognitive understanding of why she had disappeared from his life. In an email to the ICL on 26 May 2019 the maternal grandmother said as follows:

   It is with deep sadness and considering [the child’s] best interest we do not see any role in his life (with [the father] having control) because we do not want to be controlled, told we are the liars, manipulated and abused continually by [the father]. The ongoing trauma it would inflict on [the child] having lost his mother, grandparents and extended family is enough for any child to bear. This is why we feel it is in [the child’s] interests not to have access at the moment. If he comes home he will not want to go back and we can’t bear the pain this will cause to him and the trauma it will inflict on us.

10. In my view that email paid lip service to the needs of the child focusing instead on the mother and the maternal grandparents’ criticisms of the father and the apparent failings of the mother’s legal representatives, the ICL and the Court itself. The mother throughout her evidence demonstrated a profound lack of insight into the needs of the child. Her decision to have nothing more to do with the child is consistent with that and it is this attitude and the way in which it impacts upon her capacity to parent which in my view would have exposed the child to the ongoing risk of psychological abuse had he remained in her care.   On the other hand the father during the course of his evidence before me demonstrated significant insight into the importance of the child’s relationship with the mother and the likely impact of his removal from her care and what he would do to facilitate that transition. The father’s insight and his parenting capacity was further highlighted by the evidence about how he had cared for the child after execution of the recovery order and his willingness to seek the guidance of Ms G as to how it should be handled. The fact that the father is seeking orders that the child spend time with the mother notwithstanding that she has resisted his involvement in the child’s life for so long is another example of the father doing his best in difficult circumstances to prioritise the child’s welfare. In all of the circumstances I am satisfied that the father will prioritise the child’s needs on an ongoing basis and that he is able to not only provide physical care but will also be able to provide for the child’s intellectual and emotional needs.

Culture and Indigenous Background

1. A significant aspect of the mother’s case was her concern that the child experience, know, and be brought up as part of the Aboriginal community. This was of particular importance to her in circumstances where her father had been taken from his parents at the age of 18 months. The mother told Ms G that it is important for the child that she is able to “bring back what is lost” and that she hoped he would be able to learn about “Australia’s history and the Dreamtime”.

2. The maternal grandfather deposed at [23] of his trial affidavit as follows:

   As a member of the “stolen generation” who was taken from my Indigenous family at approximately 18 months old, I lost my mother, four of my siblings and extended family. Losing my mother and extended family at a young age has had a profound impact on me. I wish for Elijah to have stability so that he can reach his full potential. I hope that he does not experience the loss of his mother and extended family. As an Indigenous elder, I believe that it is important for Elijah to maintain strong bonds to his extended family so that he does not go through what I went through in my life.

3. It was somewhat surprising in these circumstances that the mother and maternal grandfather seemed to have little or no understanding that what the mother was proposing would not only be likely to result in the child having no relationship with his father but that he would also be likely to have little or no involvement with or understanding of his Country B heritage. The mother’s suggestion that she had some Country B friends did not really address this issue and I have little confidence in the mother’s capacity or her commitment to the child having a real understanding of his Country B heritage.

1. In contrast, the father recognised and acknowledged the importance of the child’s Aboriginal heritage and I am satisfied that he will do whatever he can to help the child to understand and appreciate his aboriginal heritage.   

Conclusion

1. Although there are risks with respect to both the short and long term welfare of the child as a result of his removal from the mother’s care and with respect to final orders that he live with the father, in my view those risks must be weighed up against both the short and long term risks of remaining in the mother’s care.

2. I am satisfied that the mother’s mental health issues present both short and long term risks for the child.  As conceded by Dr A, anyone threatening suicide, as the mother did both immediately prior to the commencement of the hearing and during that hearing, is psychiatrically unwell. As previously referred to, I am satisfied that the evidence, including the mother’s own evidence, demonstrates that she has not been coping with life on a day to day basis at that time.  Dr A in his report described the mother in the early years of treatment as presenting “…with a pervasive pattern of very difficult interpersonal relationships, affective instability with intense periods of lowered mood and also anger, regular and worrying self-harm as well as fluctuating but significant suicidal thoughts and behaviour”. There are aspects of the mother’s presentation during the hearing consistent with Dr A’s description of the mother during these early years of treatment.

3. Dr A said that from his experience the mother’s perceived sense of injustice has “always been real and justified”, I have found to the contrary. Although the mother’s strong personal views and sense of injustice are on this occasion directed at the father, or she would say a consequence of the father’s conduct, it is clear from the evidence however that this is not the first time and he is not the only person who has caused the mother to react in this way. I am satisfied having regard to the evidence of Dr A that given another trigger she could regress again in the future. The child has been exposed to the effects of the mother’s personality in so far as it relates to her feelings about the father and in my view could also be affected if the mother were to regress in the future for whatever reason.

4. In my view, the orders the mother proposed, driven by her sense of injustice, which I have found lack foundation would inevitably have resulted in the child having no meaningful relationship with the father. I accept Ms G evidence as to the likely long term consequences for the child of the mother’s proposal in these circumstances.

Father’s Proposal

1. By the conclusion of the case the father and the ICL had agreed upon a minute of orders. That minute provided for the father to have sole parental responsibility for the child, that he live with the father and that he spend supervised time with the mother for up to 12 hours per fortnight at times mutually agreed upon by the parties, provided that time not clash with the child’s attendance at kindergarten or school, and on two further occasions per week by skype, telephone or like service, instigated by the father to a number provided by the mother. It was proposed that the mother’s time be supervised by one of D Centre, C Co-operative, Ms E (or her nominee) from the Contact Service, Z Service or any other professional supervisor agreed upon in writing. The choice of supervisor to be at the mother’s election and supervision to be at her expense. It was further agreed that the mother be at liberty to involve the maternal grandparents in her time with the child. It was further proposed that after 12 months of supervised time the mother have liberty to apply in relation to the child’s time with her, including with respect the requirement for that time to be supervised, and to increase that time.

2. In this case the Court is being asked to make parenting orders and must apply the presumption that it is in the child’s best interests for the father and mother to have equal shared parental responsibility unless there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or another child or family violence. In circumstances where I have not accepted the mother’s evidence with respect to the history of family violence or the alleged rape, there are no grounds to believe that the father has engaged in abuse of the child or family violence. Although in my view the mother poses a risk of emotional and/or psychological abuse to the child, I am not satisfied that she has as the evidence currently stands as yet caused the child to suffer serious psychological harm. In these circumstances the presumption in favour of equal shared parental responsibility applies unless the Court is satisfied that it would not be in the child’s best interests for the parents to share parental responsibility.

3. I am satisfied that in this case it would not be in the child’s best interests for the father and mother to have equal shared parental responsibility and propose to make the order for sole parental responsibility proposed by the father and the ICL. The mother has removed herself from the child’s life, not only demonstrating her inability to focus on the needs of the child but also creating a situation where she will have no way of assessing what might be in the child’s best interests at the relevant time and no basis for making an informed decision in relation to any major long term issues that might arise.

4. An order for equal shared parental responsibility also requires the parties to consult each other in relation to any decision and to make a genuine effort to come to a joint decision. Although I am satisfied that the father could do so, I have no confidence that the mother has the capacity or would be willing to do so. To the contrary I am satisfied that the mother has actively sought to exclude the father from taking any part in making decisions with respect to the child’s short and long term welfare, disregarding any of his concerns and has actively done all she could to exclude him from the child’s life.  

5. Although living with the father is the child’s only option, I am also satisfied that it is in his best interests to do so and that more importantly that his welfare will be best served by living with his father. I am also satisfied, however, that the child’s separation from his mother and the maternal grandparents is likely to have been extremely difficult for him notwithstanding that the father has demonstrated significant insight with respect how to best manage the dramatic changes in the child’s life. It was for this reason that Ms G recommended that the child immediately start spending supervised time with the mother. Whilst I accept her evidence with respect to the need for the child to have a meaningful relationship with both of his parents, the child’s needs with respect to spending time with the mother may also have changed since she gave that evidence. It is now some months since judgement was reserved and if the child has not seen the mother since then, and assuming that it is considered to still be in his best interests, at the very least some consideration may need to be given to how much time the child should spend with the mother, under what conditions, and in particular how that relationship can be best re-established. I am satisfied that at the very least that any time will initially need to be supervised. I am also satisfied that for the same reasons I should make the order the father and the ICL propose restraining the maternal grandparents from permitting the child to see or spend time with the mother without the father’s agreement in writing. I also have concerns about the maternal grandparent’s capacity to prioritise the child’s needs over those of the mother in these circumstances.

6. I am confident that given the way in which the father conducted himself during the hearing, his demonstrated insight into the needs of the child, and his proposal for the child to spend time with the mother, he will promote the child’s relationship with the mother if she seeks to re-establish that relationship subject to being satisfied that it would be in the child’s best interests at the time to do so. Whether the mother chooses to do is ultimately in her hands.  

7. Although I am also satisfied that it would be preferable given the protracted litigation to date to make orders least likely to lead to the institution of further proceedings, I do not propose to put in place a regime that may no longer be in the child’s best interests. I am hopeful that this will not lead to further proceedings but in the circumstances see no other option. On that basis, I propose to reserve the question of the child’s time with the mother.

8. Although the father will have sole parental responsibility in order to avoid any doubt he seeks an order dispensing with the mother’s consent for the issuing of a passport for the child. There is currently in place an order restraining the mother and the father from removing the child from the Commonwealth of Australia and providing for the child’s name to be on the Airport Watch List. The father is from Country B and has family in Country B. Although the father’s case is that he proposes to remain in Australia with the child, he will inevitably want to visit his family at some time in the future and I am satisfied he should be able to do so and propose to make the order he seeks with respect to the issue of a passport for the child and discharge the Airport Watch List order in so far as it relates to the father. Although if the mother is not spending any time with the child the father may well be permitted to relocate to Country B with the child should he wish to do so, the child has been through a significant amount of change and arguably it would not be in his best interests to do so in the short term. I am confident that the father will prioritise the child’s best interests and in these circumstances I do not consider it necessary to make orders preventing the father from taking the child out of Australia.

9. At the time I made the recovery order I also made orders  pursuant to s 68B restraining the mother by herself her servants and agents (including the maternal grandparents) from attending within 500 meters of the father’s home and being within 500 meters of the father and/or the child. I accept Ms G evidence that the child is unlikely to understand why the mother and the maternal grandparents are no longer in his life and in these circumstances coming into contact with them without proper consideration as to how that might impact upon him would not be in his best interests. In these circumstances I propose to make an order in the same terms.

10. Finally in circumstances where the mother is no longer participating in the proceedings I propose to make the orders the father and the ICL propose agreed upon with respect to the provision of these orders to the child’s school or kindergarten, and authorising the child’s treating health care professionals and his childcare, kindergarten or school to communicate with the mother. In my view in circumstances where the father has sole parental responsibility for the child and the child is to live with him orders permitting him to take photographs of the child and the use of social media are not necessary.   

Child Support

1. On 1 May 2019 the mother was cross-examined about her assertion as to there being child support arrears. It was put to the mother that she and the father had agreed that the amount the father was required to pay for supervision would be offset against any child support he was assessed to pay. The mother said in reply that there was a discussion, however when she was asked whether that meant she had not agreed she said that she was “not saying that”. Doing the best I can, what the mother seemed to be saying was that she had agreed to a credit equivalent to the amount of the child support as assessed, not the total cost of the supervision.

2. Whether that was the case, on 8 May 2019 the father received a letter from the Child Support Agency advising him that the non-agency payments he had requested be credited against his child support liability for the dates of 27 October 2018, 10 November 2018, 24 November 2018, 8 December 2018, and 22 December 2018, had been disallowed there having been no mutual intention that they were intended to be credited against the child support assessment. This is contrary to the mother’s own evidence and I am satisfied that at the very least based upon her own evidence there would be a credit of at least the amount of child support the father was assessed to pay. As this issue had only just come to light, neither party gave any evidence about what representations the mother may have made to the Child Support Agency, however in circumstances where the father was requesting the credit it is reasonable in my view to infer that it was the mother who had told the agency that she would not agree to the payments being credited against her child support. Whether it was the total amount the father spent on supervision or an amount equivalent to the child support as assessed, it is clear that the mother had at least with respect to the dates listed unilaterally and counter to the agreement rejected any credit.

3. As a consequence the father sought an order that within seven days the mother do all acts and things necessary to communicate to the Department of Human Services (Child Support) that pursuant to s 71A of the Child Support (Registration and Collection) Act 1988 (Cth) all of the father’s payments for supervision services at D Centre (save and except payment pertaining to 27 October 2018) were intended to satisfy, in equivalent dollar amount, child support payable by the father to the mother at the relevant time. In anticipation of the mother not doing so the father sought an order pursuant to s 106A of the Act.  

4. Another way of dealing with this issue would be for the Court to make a departure order which would leave the father as at the date the child was placed in his care not owing any child support to the mother and conversely the mother not owing him any child support .However, this issue arose when the proceedings were close to their conclusion and not only has the father not had the opportunity to avail himself of the other remedies available to him pursuant to the Child Support (Assessment) Act 1989 (Cth), there has been no application for a departure and, it follows, if the father were to make an oral application the Registrar of Child Support could not have been served with the application as required by the Family Law Rules 2004 (“the Rules”). Although the Rules do make provision for the Court to dispense with the requirement for service of the application upon the Registrar and I did consider that option, upon reflection I am not satisfied that it would be appropriate to do so in this case. Although I have some reservations about whether the orders the father proposes will achieve what they intend, I propose to make those orders. If those orders do not achieve their intended end the father will have the option of seeking an administrative review. For that purpose I propose to make an order permitting the father to provide the Registrar with that part of these reasons that addresses this issue.

The Father’s Legal Representation

1. As previously referred to, the mother was ably represented by experienced solicitors and counsel until the latter stages of the hearing. The father was also ably represented by solicitors and counsel who appeared pro bono. This was of benefit to the Court as well as the father.  Although the case was originally listed for four days as previously referred to it was ultimately listed on 29 days over a period of approximately three months. Appearing pro bono in these circumstances required a significant commitment and would have been at a substantial personal cost. In these circumstances the commitment of both the father’s solicitors and his counsel was particularly commendable and in my view should be acknowledged.  

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 26 September 2019.

Associate: 

Date:  26 September 2019