WHITESIDE & JOYNER

[2013] FCCA 819

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITESIDE & JOYNER [2013] FCCA 819

Catchwords:
FAMILY LAW – Entrenched parenting dispute about six year old child – child living with mother as primary carer all his life – father alleging mother intellectually deficient and dominated by her family – father convinced child sexually abused – numerous referrals to professionals and DHS – no substantiation of abuse – risk of system abuse by referrals – father alleging poor treatment by child’s school – allegation unfounded – orders made as sought by Independent Children’s Lawyer. 

Legislation:
Family Law Act 1975 (Cth), ss.60CC, 60CC(2), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(ca), 60CC(3)(d), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 60CC(3)(m)

Goode v Goode [2006] FamCA 1346

Applicant: MS WHITESIDE

Respondent: MR JOYNER

File Number: MLC 4710 of 2008

Judgment of: Judge Burchardt

Hearing dates: 16, 17, 23 & 24 May 2013

Date of Last Submission: 24 May 2013

Delivered at: Melbourne

Delivered on: 9 August 2013

REPRESENTATION

Counsel for the Applicant: Ms Conlan

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Ferreira

Solicitors for the Respondent: Madinah Legal

Counsel for the Independent Children’s Lawyer: Ms McCreadie

Solicitors for the Independent Children’s Lawyer: Bowlen Dunstan & Associates Pty

DRAFT ORDERS

1. All previous orders be discharged. 

2. That the mother have sole parental responsibility for the child X born (omitted) 2006 (“the child”). 

3. That the child live with the mother. 

4. That the child spend time with and communicate with the father as follows:

   (a)Each alternate Sunday from 10.00 am to 6.00 pm commencing with the father to be in substantial attendance during such time; and

   (b)By telephone each Wednesday with the father to initiate the telephone call to the mother’s mobile between 6.00 pm to 6.30 pm. 

   (c)On Day 2 of (omitted) from 10.00 am to 6.00 pm; and

   (d)Father’s Day from 10.00 am to 6.00 pm. 

5. For the purposes of paragraph 4(a) herein the father shall:

   (a)Collect and return the child to and from the front of the mother’s residence at the commencement and conclusion of time and the father shall remain in his motor vehicle during changeover; and

   (b)Ensure the child attends all scheduled activities that occur during his time including but not limited to sporting activities, (omitted) school and birthday parties. 

6. That the father, his servants and/or agents be and are restrained by way of injunction from:

   (a)Taking the child to any doctor, hospital, therapist, counsellor or any other allied health professional or service unless in the case of an emergency;

   (b)Attending the child’s school unless the child is required to attend same during the time he is in the care of the father; and

   (c)Discussing any previous allegations of sexual abuse, neglect or investigations with and/or within the hearing of the child. 

7. That the parties, their servants and/or agents be and are hereby restrained by way of injunction from:

   (a)Denigrating, belittling, harassing, rebuking, assaulting and/or intimidating the other parent or members of their family or household to and/or within the hearing of the child;

   (b)Discussing with and/or within the hearing of the child any allegations, evidence or material relating to this matter;

   (c)Questioning the child about the other parent’s household, family or conduct of the other parent. 

8. That the mother shall forthwith advise the child’s school and any future education providers to provide to the father at his expense, if any, copy all school reports for the child. 

9. That the parents shall forthwith advise the other as soon as is practicable of:

   (a)Any change of address and/or contact telephone number;

   (b)Any life threatening injury and/or illness suffered by the child whilst in their respective care.

10. That the Independent Children’s Lawyer be discharged. 

11. That all extant applications be dismissed. 

12. That pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

13. Certify for advocacy. 

IT IS DIRECTED THAT:

1. Any future applications in this matter shall be listed before his Honour Judge Burchardt at first instance, if possible.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 4710 of 2008

MS WHITESIDE

Applicant

And

MR JOYNER

Respondent

REASONS FOR JUDGMENT

Introductory

1. The issues in this case all concern the well-being of the sole child of the parties, X born (omitted) 2006.  The matters the Court is asked to determine are; whether there should be an order for sole parental responsibility; with whom X should live and in what proportions of time; which weekday school he should attend; which (omitted) school he should attend on the weekends; whether his extra-curricular activities should be continued while in the father's care, and finally, whether a cousin of X's – referred to under various names but whom I shall refer to as Mr A – should be prohibited from coming into contact, or restricted from coming into contact, with X.  As the length of the preceding sentence would indicate, there are numerous issues. 

2. For the reasons that follow, I am going to make the orders sought by the Independent Children’s Lawyer.  The mother will have sole parental responsibility.  The child will live predominantly with the mother and spend time with the father, as sought by the Independent Children’s Lawyer.  The child will remain at (omitted) Primary School.  He will attend the (omitted) school selected by his mother.  His extra‑curricular activities should be encouraged, but will not be the subject of Court order, for reasons which will become apparent.  Finally, Mr A will not be in any way excised from contact with X. 

History

1. These proceedings were commenced by an Initiating Application filed by the mother on 17 December 2012.  They are not, however, the first set of proceedings between the parties.  Between November 2008 and April 2011, the parties conducted an extensive set of proceedings before Hughes FM, as her Honour then was, which culminated in consent orders on 1 April 2011, at a time when both parties were legally represented. 

2. There had been antecedent divorce proceedings filed by the husband on 23 May 2008 which led, in the ultimate, to a divorce order on 17 June 2008. 

3. Notwithstanding the substantial amounts of materials filed by the parties, they have said but little about their antecedents and origins at any stage.  From the Application for Divorce it is indicated that the father, who is of course the respondent in this set of proceedings, was born on (omitted) 1968, and the mother on (omitted) 1978. 

4. From the materials filed by the parties it seems clear that each of the parties arrived in Australia in 1999, and it seems that although they knew one another for approximately two years, the marriage that took place in 2006 was what might generally be regarded as an arranged one.  It seems to be common cause that separation took place on 19 February 2007.  At this time, of course, X was only a few months old.  It is clear that he has lived in the primary care of his mother throughout his life.

5. The father has deposed that he remarried in 2008 and he has a further child, Y, from that relationship, now four years old.  That marriage is also at an end, although it is clear – not least because the second ex‑wife gave evidence on the father's behalf – that the inter‑relationship between the father and the second wife is at the very least relatively cordial. 

6. This proceeding commenced, as earlier indicated, on 17 December 2012 when the mother sought a Recovery Order.  The father had collected the child on 5 December 2012 for regular time pursuant to the extant Court orders but had not returned him.  He was thereafter not sent to school.  According to the mother’s Affidavit in Support of her Initiating Application, this was a pattern of events that had occurred earlier in 2012 also. 

7. Given the time of year, the matter could not be accommodated until

   
   

   7 January 2010, on which occasion the Court made a Recovery Order which was executed some days later.  The Court has since appointed an Independent Children’s Lawyer and obtained a family report.  This is the third family report, given that two reports by Mr S were prepared for the ultimately non-contentious hearing before Judge Hughes in 2011. 

The parties' positions and their affidavits

1. The parties have filed quite a number of affidavits, both in this tranche of proceedings and in the proceedings before Judge Hughes.  I do not propose to traverse these materials in any great detail.  They show, however, that the positions that the parties adopt now have been to a very considerable extent constant throughout. 

2. The father's position in his affidavits – perhaps stressed more in earlier than later ones – is that the mother is a poorly-educated, very simple woman, who cannot properly look after the child.  The father asserts that the mother is wholly dependent upon her sister, Ms A, and her mother.  He asserts that the mother's illiteracy (in all scripts and languages) and her complete lack of English make her utterly dependent upon her sister and mother. 

3. The father's case is that the latter two persons control the mother and connive to prevent him having the relationship he ought to have with his son.  The father has also asserted from time to time that the mother is mentally deficient and for this reason also is not a proper carer for the child.  The father's position is perhaps well encapsulated in paragraphs 56-57 of his affidavit filed on 15 May 2013 in which he states:

   “56.  For the reasons aforementioned in paragraphs 10-31 I believe X should reside 50% of the time with me.  To reiterate those reasons I believe it to be in X’s best interests to reside with me because:

   (a)     The constant attempts of my ex‑wife and her family to deny me access to X will have a growing negative effect on his relations with me and he has a right not to have his relationship with his father unduly impacted. 

   (b) The actions of the staff at X’s current school have or will create a barrier of fear between X and myself for the reason that they cause him to be distressed in regard to me and this can have wider implications on his perspective of me which again denies him the benefit of having a trusting and healthy relationship with his father and parent. 

   (c) My ex‑wife can barely speak any English and therefore she is much at the mercy of her family members in regards to understanding matters concerning X and I believe for the reason that they are not X’s parent that they are unfit to be guardians over him and unable to make considerations in regard to him that a parent would especially in comparison to me who is his biological father and this would detract from X having the benefit of his parent guardian taking care of him.  Attached hereto and marked “H” is professional comments confirming my ex-wife's inability to communicate in English. 

   57.    Further to this X is old enough now not to require as much of the maternal attention as he did as a younger child and so he does not lose any benefit in this regard and also by residing with me he can benefit from the company of his sister and my wife who cares for him and also enjoy the relaxed company of his extended family and numerous cousins from my side of his family.”

4. It should be noted that the reference to the child's school is another part of the dispute.  The father is firmly of the view that the (omitted) Primary School is biased against him, and indeed forms part of a more general conspiracy against his interests.  These issues as to conspiracy also extend to the very sincerely-held belief on the father's part that X has been sexually abused by his cousin, Mr A.  This belief has subsisted despite numerous referrals to treating medical practitioners, to the police and the Department of Human Services (“DHS”).  It is this belief, of course, which gives rise to the dispute about the extent to which Mr A should or should not be allowed to come into contact with the child. 

5. The mother's position – once again put more globally, but in my view accurately summarising her affidavit material – is that the father was controlling and violent during the relationship.  The mother says she is a thoroughly competent person to conduct herself as a mother, and that although of course she receives assistance from her sister by way of interpretation on occasions, she is the primary carer for the child and attends to his everyday needs and the person to whom he would first turn for help or succour.  She says that she cannot communicate with the father and it is for this reason, for example, that she has taken unilateral decisions about X's education. 

6. The mother also complains that when X is with his father, the father routinely absents himself to work as a (omitted) and/or for other reasons, and leaves X with other family members, even overnight.  Indeed, the mother asserted in oral evidence that this had continued to happen virtually up until the hearing before the Court.  The mother, understandably enough in these circumstances, seeks that the child live primarily with her, and that she has sole parental responsibility. 

Some earlier reports

1. It should be noted that in the proceedings before Judge Hughes, both parties were the subject of psychiatric examination.  The report of Mr K dealt with the father's mental health, and it is sufficient, in my view, to say that it showed nothing remarkable.  The father has sought to make capital out of some remarks in the report of Dr K who examined the mother.  Dr K's report, which is annexed to the affidavit of the mother filed on 17 August 2009, is dated 30 April 2009. 

2. In my view, the most telling extract from that report is at paragraph 11 where Dr K said:

   “In summary, this is a woman without any psychiatric ill health issues or a diagnosis as such.  However, I suspect that her personality type is of the soft maternal, and somewhat dependent disposition.  People with this personality type often make particularly good parents.

   As she does not have a psychiatric ill health condition, no treatment is indicated for her.  I consider it most unlikely that there would be allegations upheld that she was somehow physically aggressive to the child.  However, a court will hear the totality of the evidence, and decide that situation. 

   She appears to get on well with her own mother, and sister who live in the commission flats where she resides.  No treatment is indicated for her at this stage.  She seems to be warmly devoted towards her child, and I gained the impression was a stable, and appropriate mother.”

3. It should also be noted that there are two family reports prepared by Mr S, to which I have already referred.  Those reports speak for themselves.  They record inter alia the father's criticisms of the mother as set out above, and I note that in each instance Mr S was of the clear view that the child should live predominantly with the mother. 

The evidence given before the Court

1. It is not possible to avoid a relatively detailed exposition of the evidence given before the Court, although necessarily what follows is a paraphrasing in which I emphasise those aspects of the evidence that seem to be of particular significance. 

The evidence of the mother, Evidence in Chief

1. In evidence-in-chief the mother confirmed that X has not missed school this year and is doing well.  She said that the teachers at (omitted) Primary School were good and that X had many friends at school.  The mother complained that the child was still spending time with relatives and not with the father during spend time periods and that this had occurred up until quite recently.  The mother then dealt in some detail with the historical matters to do with Mr A; these were designed to suggest that the father cannot reasonably have formed the suspicions of abuse that he has. 

2. The mother confirmed that she has always complied with Court orders and that X sees his father regularly.  She confirmed that she never speaks to the father and had never talked to him about which primary school X might attend.  She also confirmed that she takes X to his (omitted) school and said that the father does not. 

3. The mother dealt with an incident in February 2013 when it was asserted that X had not wanted to spend time with his father, and said that ultimately following an intervention by the school Principal, this had in fact occurred.  Under cross-examination by counsel for the father, the mother stuck to her version of the events involving Mr A.  She confirmed that Mr A had never lived within her household and was living with his mother. 

4. The mother asserted that the father had never asked where X was sleeping during his various visits to the mother's premises, and that she and her son had shared a room. 

The mother under cross-examination

1. Under cross-examination, the mother was cross-examined as to why she had signed agreements not allowing Mr A to spend time with her son.  She said she did not know the language and that she had been threatened by some female (unidentified) that she would lose her son if she failed to sign.  The mother said that she signed the document without the assistance of an interpreter. 

2. I should interpolate at this point and say that while it is true that the mother does not read English and can do little more than sign her name, I found her answers about this aspect of the matter thoroughly unconvincing.  The fact is that she has consented to orders keeping Mr A from the child from time to time, and on some of these occasions at least she has been legally represented. 

3. The mother was cross-examined about her interaction with the father and confirmed that it was extremely poor.  Her answers in relation to an alleged issue at kindergarten (which is of no moment) struck me as being convincing.  The mother was cross-examined about injuries to X in 2012 at school and she said there were two bruises on his head last year, which according to the teachers had arisen out of a collision.  She opined that the father says bad things about the school from time to time, so maybe they would not talk to him. 

4. The mother was cross-examined about the (omitted) School to which the father wishes to send the child, and was dismissive of the school.  She asserted that the father had slapped the child in the preceding week, as recorded by X, and that there had been a mark around X's eye.  She said she had not reported the matter to the police for various reasons.  In my view, her answers on this topic were also extremely unresponsive and unconvincing. 

5. The mother confirmed that the school in (omitted) X attends is 15 minutes from where she lives by tram, and that she is fully capable of raising the child herself.  She confirmed that there was no reason in her mind why Mr A could not come and see X as he is a family member. 

6. Under cross-examination by the Independent Children’s Lawyer's counsel, the mother confirmed that the school enrolment form for X does not list the father as one of the four emergency contacts; this is because she has simply no relationship with him.  Exhibit ICL1 was tendered and is the Student Enrolment Information form. 

7. The mother confirmed that she lived in a housing complex and that a number of the other children who lived there are X's friends and go to (omitted) Primary School; he plays with them after school.  She is in some instances friends with their parents.  She confirmed that she has a network of friends in (omitted) and repeated her criticisms of the (omitted) School. 

1. The mother asserted that the father is fixated with the question of X being sexually abused.  She does not agree.  She asserted that the father is a trouble maker at the (omitted) Primary School.  When questioned about the repeated involvement of the DHS, she said that she felt it was an abuse to her when the father complains about her.  She said that she was a good mother and that the child was healthy.  The mother said that the father asserts that she is incapable of properly looking after the child, that he sometimes shouts and is arrogant.

2. The mother confirmed that she prepares X's meals, including his school lunchbox, buys his clothes and groceries and comforts him when X is unwell.  When asked how she felt about communicating with the father, the mother said that, "We cannot agree."  The mother said she would be very sad if she spoke to him and he does not listen; she is afraid of him.  The mother said that she will never be able to communicate with the father.  She says the father does not even want people to help X.  She said she was unable to say anything positive about the father.  The mother even went so far as to say that he does not love the child. 

3. The mother confirmed that she received a copy of the Incident Notification Form relating to an incident on 13 May 2013, which was tendered as exhibit ICL2.  Further she confirmed the school reports which show X doing very well, which are exhibit ICL3.  When taken to exhibit ICL4, which is a record of 31 school absences in 2012 – she said that all of these took place when he was with his father, and not because he was ill.  In re-examination the mother confirmed that the (omitted) school in (omitted) is a considerable distance from where she lives. 

The evidence of the father, Evidence-in-Chief

1. The father said that his son is his first child and that he loves him a lot.  He said that he would do everything for his son; he would prepare proper food; help with learning; take him to swimming and soccer and introduce him to other relations.  He said that his son loves him a lot and runs to him after school.  He said that his son likes spending time with his sister and likes sport.  The father tendered some photographs as exhibit R1. 

2. The father conceded that the mother loves her child, and asserted that there is no problem between him and the mother.  He asserted interference by Ms A and the maternal grandmother.  He asserted that the grandmother and Ms A make all the decisions about his son, which causes the son stress, and led to him having no say in the child's affairs.  He asserted that things would be better if he dealt only with his ex‑wife.  He asserted that all he wanted was his right to work on the best interests of his son. 

Under Cross-Examination by counsel for the wife

1. The father said that he was not in receipt of any family tax benefit for his children.  He said he had no problems communicating with the mother.  He was cross-examined about the incident when he went to the police.  He said he showed the police text messages from the mother, but the text was not from his ex‑wife but from Ms A.  He said he works now for three days, sometimes one night.  He said he had reduced his time as a (omitted) this year. 

2. In response to a question as to whether he had ever paid more than $15 per month in Child Support, he said there had been shared custody since X was young and that he deducted expenses while he was in his care.  He was, however, forced to concede that there was no time spent overnight until 2010.  He asserted that he simply paid the amount of Child Support his lawyer told him to pay. 

3. The father confirmed that he was aware of the (omitted) school the mother takes X to, and that this was important.  He said he takes X to a (omitted) school near where he lived.  He stuck to this proposition even though challenged.  He said the photographs show that he takes X to his relevant activities.  He said he wanted X to be an AFL player. 

4. He went on to say, almost immediately afterwards, however, that he had been told at Court that he can do what he thinks is best for X when he is with him, and so that is what he does.  I should interpolate and say that I found the father's answers on this question, (the degree to which X is encouraged to participate in Auskick and soccer) unconvincing. 

5. In response to cross-examination about the incident when the child was over-held from 23 to 31 May 2012, the father said that X was sick and vomiting.  His answers appeared to vary as to how many days he had in fact over-held X.  He said he was just looking after his son to recover and get him back to school.  He said he had breached the Court order over 100 times but was only looking after his child. 

6. I should say the answers given to counsel's questions about the over-holding incident in December 2012 struck me as being extremely non‑responsive.  He tended to answer questions with questions of his own.  The father gave evidence about his most recent concerns arising in about December 2012 about Mr A.  He learnt that Mr A would be coming back to Melbourne.  He said that he had asked the mother if X had been with Mr A alone and that she said, "Yes."  A bruise that he saw at about this time caused him concern.  He was not sure if it had been caused by Mr A or at school, and that that was the reason why the child was withheld from school. 

7. The father said that no school reports were provided to him and therefore he did not know whether the injury had occurred at school.  He denied leaving X with other persons, but he did say that if he was shopping and X was playing with his sisters or cousins he might leave him.  He said X had slept elsewhere when his sister asked him to sleep over; he slept at the father's brother's house and the father with him there. 

8. The father denied leaving X with others while he works.  He said he had stopped working the long hours he had previously worked. 

9. The father dealt with X's progress at school, which he agreed was generally good.  He agreed it was good he likes his classmates, but the father disagreed with the semester 1 report; he said X was not good at that time. 

10. The father denied hitting his son and said he loved him, and said that he still loves his ex-wife.  He says it was her mother who forced the separation.  When faced with the report of Dr K, the father temporised.  He said he could not confirm that the mother did not have a psychiatric problem.  He said she had problems in decision-making and problem solving.  He denied ever telling X that his mother was stupid.  He said he had been to a post-separation parenting course, albeit that it was not the one ordered. 

11. The father was cross-examined at length about the seven DHS notifications he has made and the three thorough medical examinations that have taken place to investigate whether X had been abused.  This had involved inspection of his anus.  It is fair to say that the father was unable to understand that the negative outcomes (in the sense that no abuse was found to have occurred) might be accurate.  He maintained he still wanted a further opinion.  The father said that it was not possible to get a letter saying that his son was not abused, and that that was what informed his decision to keep his son safe. 

12. The father denied being aggressive at (omitted) Primary School in December 2012.  He made allegations against X's then teacher, Ms T.  He asserted that X is being bullied at school.  He confirmed that he is not happy with the school and feels that X is treated differently.  He denied being aggressive to school staff and complained again that the school will not tell him anything. 

Cross-Examination by counsel for the Independent Children’s Lawyer

1. The father confirmed that although he initially wanted full custody, he now agrees an equal time arrangement would be appropriate.  He said he would be assisted by community elders.  He confirmed that the interference of Ms A and the wife's mother concerned him.  He repeated he still has concerns about X in the mother's care.  He repeated his complaints that X had in the past weighed less than was normal. 

2. When asked if he agreed that his son was doing well at school he said he was not, but he said his son did not like reading and wished to have a holiday the whole year.  Under further cross-examination, however, he said he did not know how his son was going in school because the school would not show him anything.  He said he would agree his son was doing well if he saw something.

3. Although the school report made available to him said that X was doing well, he said that this document should have been made available to him before.  He conceded it was a good report, but still said that if what was in the report was right, it would be a good report.  He said he believed in his heart that X was low at the time of the report.  When taxed with the 31 days of school absence in 2012 while X was in his care, he denied this; he said the 31 days arose out of the over-holdings and asked rhetorically, "What else do you do if you're concerned for the safety of your son?"

4. The father was taken again through the DHS complaints he has made.  It was pointed out by counsel that his reports had not achieved the outcome he might wish.  It is fair to say that the responses given by the father were unresponsive and unconvincing.  He did, however, deny that he thought everybody was against him because they were (omitted) phobic.  He asserted that he had been told at the last Court hearing that he was free to do what he wished in his own time, and it was for this reason that he enrolled the child in a different (omitted) school. 

5. The father was cross-examined about the DHS reports that had come to the conclusion there was no proof that X had been abused.  From the answers given it is clear that the father does not accept that that is the case.  He was not happy with the assessment in the hospital and not happy with DHS responses.  He said he had no satisfactory answer from the DHS. 

In Re-Examination

1. In re-examination the father confirmed his discontent with the school.  He asserted that X had more than 10 injuries at school last year.  He asserted that the mid 2012 withholding from school was because of ill health.  He said that he confirmed that the withholding from school in December 2012 took place because X came back to him with bruises after Mr A had come back from Perth.  He said he had tried to ask the school but they had not been co‑operative. 

2. The father asserted that there had been a cover up and that the police had told him there was a cover up but there was nothing they could do without evidence.  He said he could not say whether the abuse occurred or otherwise.  He denied denigrating his ex-wife and said she was a good wife and good mother.  He finally confirmed that he wanted the Court to investigate the abuse of X. 

The evidence of Ms M

1. Ms M is a registered psychologist who adopted her affidavit sworn 20 May 2013.  She has been the father’s treating psychologist since 2009 but during that period has only seen him five times; the consultations were to do with stress issues.  Under cross-examination by counsel for the mother, Ms M conceded that she had not read the three family reports that had been prepared, nor any of the mother's affidavit material. 

2. Ms M had only met X once, which was in the last twelve months. She had had no discussions with the school or DHS.  She conceded that the other reporters were better informed than she was.  Under cross‑examination by counsel for the Independent Children’s Lawyer, Ms M conceded that her views were based entirely upon what the father had told her.  It is sufficient to say that Ms M, while clearly a competent professional in her field, was approaching the matter on an information base solely controlled by the father. 

3. Ms M’s concession that the other reporters were better informed than her was entirely appropriate.  Accordingly, I give her report no weight. 

Ms H

1. Ms H is the second wife of the father.  She married him in 2008 and separated in 2010.  Their daughter, Y, was said to be four years and three months old when she swore her affidavit on 17 May 2013.  It is clear from her evidence that she still has an amicable relationship with Mr Joyner.  Mr Joyner is permitted, according to Ms H, to take Y whenever he wishes, and he sometimes does so for up to six days. 

2. Ms H says she likes X, who is a happy and well-behaved boy.  She confirmed that X spends time at her house and that his step-sister, Y, likes him.  She confirmed that she went to the (omitted) Primary School in February 2013 as the father was unwell.  She said they separated because of the stress of Court proceedings.  Under cross-examination by the Independent Children’s Lawyer, Ms H advanced some remarks about the mother which were clearly simply hearsay. 

The evidence of Mr H

1. Mr H confirmed the contents of his report.  He confirmed further that extra-curricular activities for X were important.  He confirmed that it was the quality of time spent with each parent that was more important than the amount, particularly in relation to the father.  While one weekend per month might be enough it would not have continuity, although it would reduce the possibility of complaints by the father.

2. Mr H confirmed constant complaints were bad for X, and that there had been far too much assessment of him for the last four years.  This may possibly amount to system abuse.  He said that the father's beliefs were unshakable and that it was highly unlikely that counselling would help.  He said that the father's lack of insight was of concern.  He said that school needs to be a safe haven for children, and he said that there were no problems arising from the fact that the mother could not speak English.  It was clear that X was living in a matriarchal household which was very caring and was thriving in it. 

3. Mr H said that equal care would be devastating and that the father lacked both insight and spontaneity.  He pointed out that X's own observations to him showed a somewhat sparse environment.  Under cross-examination by counsel for the mother, Mr H confirmed again that the father and X did not seem to him to have a repertoire of shared experiences.  He said that the mother's fatigue with these constant referrals was not unreasonable.  Mr H was concerned to limit the father's interaction with the school and was concerned about the quality of the time that X spends with his father.  It was for that reason that he had recommended no overnight time. 

4. Mr H said that he considered 12.00 noon till 5.00 pm, Saturday, and 9.00 am till 5.00 pm, Sunday appropriate, each alternate weekend, and that fortnightly time would be better.  He confirmed that he had shown photographs of X's injury – including the injury to his nose – to him.  X said it happened at school when he collided with another boy.  The father had rejected this.  He did not think that X had been coached in any way. 

5. Under cross-examination by the counsel for the father, Mr H confirmed that the father was alleging a conspiracy by agencies colluding to reject his beliefs about X being abused and about the hostile attitude of his school.  Mr H confirmed that the medical examination of X by a trainee was not likely to in any way have been inadequate or compromised.  He confirmed that the father was anxious about the school. 

6. Mr H confirmed that he had not formed any views about the mother's intelligence, although it was clear that she was dependent in the context of her lack of English.  He confirmed that X was subdued when talking about his father, but that X had not said that his father hits him.  He confirmed, however, that the father shouting at X is an over-reaction. 

7. He confirmed that the three-week over-holding by the father in December 2012 must have been an incredibly stressful time for X.  He confirmed that the father had said he wanted residence of X and he confirmed his view that shared care was completely contra-indicated. 

The evidence of Ms T

1. Ms T was called because the course of the evidence had put her squarely in issue.  She is a teacher at the (omitted) Primary School and under evidence‑in-chief led by counsel for the Independent Children’s Lawyer she confirmed that X is an extremely happy little child with lots of friends, including one in particular called (omitted); he has made terrific progress; he started with little reading but has caught up with, and gone past, other children. 

2. She said X is a gorgeous child and that (omitted) Primary School is very community organised.  She says she stays till 4.15 pm to talk to parents.  She confirmed that there were no problems with the mother and that X was always really neat and tidy.  He always has a healthy lunch with fruit.  She confirmed that she had dealt with the father.  There had been four official meetings.  In the first term, on one occasion the father entered the classroom at the end of the day. 

3. Ms T welcomed him, but the father soon became quite heated and was just ranting. 

4. Ms T said this made her a bit shaky because she had not experienced it before.  The father became so loud that two other staff came in to ask if she was all right.  The matter raised by the father was about some incident that had taken place before school.  The bell went and two children (one of them was X) ran to the line.  Their heads collided and he got a bruise on the cheek.  X was taken to first-aid. 

5. At the meeting the father said he should have been telephoned, but Ms T pointed out to him (and to the Court) that the school is only permitted to ring people listed as emergency contacts on the enrolment form.  She tried unsuccessfully to explain this to the father. 

6. On the second attendance by the father the same thing happened.  He had a woman with him on this occasion.  He was concerned he had not been contacted following an injury.  Ms T asked for a copy of the agreement made at Court, and when Ms T found that he should have been listed, his name was put on the list immediately. 

7. The third time she saw the father was on a Friday afternoon in the last term, possibly in October 2012.  Ms T was called over to the Principal and the same issues were raised again.  The father became heated, and when he does get heated he becomes louder and louder.  He starts to stand up and lean over the desk, which Ms T found confronting.  X was in the room and looked frightened. 

8. On the fourth visit the father came without an appointment and demanded to see the Principal.  Ms T and the Vice-Principal went to the office.  The father had a friend with him.  The same thing happened again. 

9. Ms T invited the father to come in and do reading and he came twice.  X is always quiet after being with his father.  Ms T confirmed that there had been an incident in 2012 when the father was late.  X got upset and said he wanted to go to his mother.  Ms T had not been involved in an incident in February 2013. 

10. Ms T confirmed that head injuries are sent straight to the office and they are usually recorded and the parents called.  Scratches are dealt with in class.  Ms T confirmed that the withholding of X towards the end of 2012 had upset the school.  He missed a museum excursion and three transition days for the next year.  This latter concerned Ms T and her colleagues most. 

11. Ms T said X was treated the same as other children.  His homework was usually done when he was with his mother, but his folder was not returned while he was with his father, and the school eventually had to retain the folder. 

12. Under cross-examination by counsel for the mother, Ms T confirmed that X had not had many injuries at school.  Ms T confirmed that it was her opinion that the father pushes the child to say what he wants.  Ms T confirmed she had been contacted twice by DHS about X's care in relation to food issues.

13. She confirmed that the father has asserted to her that the mother is crazy and does not care for X. 

14. Under cross-examination by counsel for the father, Ms T confirmed that she has been a teacher for 15 years in both primary and secondary education.  She repeated that she cannot contact parents if they are not listed on the enrolment form.  She was not originally aware of Court orders.  When made aware of them, (the father said there were orders), she asked him to bring them in so she could copy them.  She put a copy on the file.  She told the mother to put the father on the form.  She had double checked to make sure it would happen. 

1. In relation to an incident on 29 March 2012, when X suffered bruising and scratching, she said it happened on a Friday before school.  X and another child called (omitted) were running.  They bent down and their heads collided as they stood up.  This led to swelling and bruising. 

2. She confirmed that it was important to talk to the father as a parent and indeed had done so on occasions when he had turned up unannounced.  Once the father was on the list he was mailed all relevant documents.  She said every child is emailed a copy of newsletters and they are put in a reader folder.  Reports are mailed by the office.  The father had attended the school about X not eating fruit.  She had talked to him about it.  X is a slow eater and she has told him to eat, not talk.  She said that she was extremely vigilant about what children eat.  She said the father was difficult to follow. 

3. She said the father had expressed concerns about X not having friends and being lonely, but she assured him that X was a very happy little boy with friends.  The father became very agitated and this had frightened her.  The father said he was the father and he has rights.  She had tried to explain that he was not on the enrolment form. 

Conclusions on the evidence

1. The above is a distillation of the evidence taken not from transcript but from my notes.  It does not purport to be a verbatim account of the evidence, but rather is designed to give a flavour of what the parties said.  In dealing with credit issues I have borne carefully in mind the language difficulties that the mother has and indeed the father also.  Although he speaks some English, it is by no means fluent.  I have also had regard to the fact that both parents, and indeed one of the other witnesses, are from (omitted) and have only lived in Australia for relatively short periods of time.

2. Nonetheless it is possible to make clear findings as to credit issues.  The mother was a good witness.  Her responses were generally at least reasonably direct (subject to some exceptions which I have noted above).  The clear picture I got was very much that of Dr K.  This is a poorly-educated, slightly simple woman, but she is a very maternal one and clearly makes an excellent mother.  It is clear that X has lived with her as his primary carer all his life and has a close and secure attachment to her. 

3. It is clear also that the father is unable clearly to see in some instances where the truth lies.  It is clear he does regard the mother as being a simpleton and unable properly to care for the child, despite his denials.  This, after all, is what he said as recently as this year when he was interviewed by Mr H. 

4. Similarly, it is clear from the DHS file and all too numerous reports to which X has been subjected that the father has an ongoing obsession that X has been abused by Mr A.  It is clear that he has not.  While, of course, it is impossible to prove a negative, the Court has to assess this matter in a rational way.  X has been examined three times in detail physically, and nothing has been found.  The DHS, despite all the complaints, have no protective concerns for X in his mother's care.  The child is a happy, cheerful little boy and his demeanour (as confirmed in the various photographs) shows a child entirely inconsistent with the sort of child who has been subject of sexual abuse. 

5. The matters that give rise to the father’s concerns are of themselves significantly inadequate to justify his obsession.  Likewise, having seen Ms T give her evidence, which did become at times (understandably) somewhat defensive under cross-examination by the father's counsel, she was equally clearly an obvious witness of truth.  She clearly adores X, who is equally clearly a very happy and contented boy at (omitted) Primary School with many friends.  It is quite apparent that the difficulties the father has had with the school have been of his own making and his behaviour has been thoroughly unreasonable from time to time. 

6. I entirely accept Ms T's description of the father’s behaviour on his various visits to the school.  It is clear that the father oscillates from time to time in the extent of his views, but taken overall the clear impression I get is that Mr H is right to say as he did that the father thinks that he is the subject of a wide-ranging (although poorly defined) conspiracy involving the police, the DHS, the school, and possibly others, including health professionals.  This is a most unfortunate state of affairs. 

7. Insofar as Mr H's evidence was the subject of any challenge, it is sufficient to record that Mr H was giving evidence in his area of expertise, a field in which he has a vast experience.  He was a direct and responsive witness whose answers were given with conviction.  I entirely accept his evidence.  Ms M is obviously a competent professional, but it is equally clear that her evidence, as I say, should be given no weight.  Ms H was clearly an entirely partisan witness. 

8. It is apparent that the father loves his child very dearly.  The mother's assertion that he does not is more indicative of her own lack of insight and the state of mind she has about the father than anything else.  Nonetheless, based on Mr H's reports it is clear that the father's relationship with his son is not as good as the father says it is.  He has shouted at his son from time to time.  It is clear that when X is in his care the father farms him out from time to time to other relatives, whether so he can go to work, or for other reasons. 

9. X would be likely to enjoy a good relationship with his step-sister, and I accept Ms H's evidence that she also loves him, and there is no reason to doubt that he might also like the father's extended family.  However, the fact is that time ordered with the father should be spent with the father, and not with third parties.  I also note that Mr H thinks that the extra‑curricular activities are important for X, and I note with some concern the father's view that he will not foment these while his son is in his care. 

The Statutory Pathway

1. I refer to, without repeating seriatim, the observations of the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 at [65]. While there has been some statutory amendment since, it is still in my respectful view a very helpful indicator as to how the Court should proceed. The Court has to consider first whether the presumption as to joint parental responsibility applies. If it is appropriate to apply the presumption the Court has to consider first equal time, and if that is not in the best interests of the child or reasonably practicable then substantial and significant time within the meaning of the Family Law Act 1975 (Cth) (“the Act”).

2. If that is likewise not in the child's best interests or reasonably practicable then the issue is at large and to be determined in accordance with the child's best interests. 

The submissions of the parties

1. The Independent Children’s Lawyer's counsel submitted that this case was about risk minimisation.  X is delightful, but is still a child.  Mr H's position was that X needed time with the paternal family, but that sole parental responsibility should be with the mother, nonetheless, given the parties' difficulties in communication.  The Independent Children’s Lawyer submitted that changeover should remain as it is, that the parties should be restrained from further medical examination of X and that the father should not visit the school.  Counsel pointed to the fact that school should be a safe harbour and that X should not be questioned about his time in each household (see draft order 7(c)). 

2. Counsel for the Independent Children’s Lawyer noted Mr H's view that the relationship with the father was tenuous, but should be preserved.  It was submitted that alternate Sundays would achieve this outcome.  It was submitted there should not be time each weekend because this would be onerous, and that holiday time was not an option at the present time given the father's lack of insight. 

3. It was submitted that X does not appear to have suffered sexual abuse, but there was a risk of system abuse and psychological abuse in the constant referrals that the father was engendering.  Counsel submitted that not much weight should be given to X's wishes.  Counsel relied upon Mr H's report.  X has a strong relationship with his maternal grandmother and aunt, the former of whom lives with him.  He also has a relationship with his step-sister, Y, which will be sustained, it was submitted, by the orders proposed.  It was submitted that while both parents love the child, the proposed orders would minimise the risk of system abuse. 

4. Counsel for the mother relied upon her Outline of Case document.  The mother agrees with the orders proposed by the Independent Children’s Lawyer.  Counsel's submissions concentrated on the father's lack of insight and his fixation on the sexual abuse issue.  It was submitted that the injunction against Mr A should be removed for the reasons set out in the Outline of Case.  It was submitted that no injunction should be made as the father had shown a tendency to assume abuse by men of X.  Any injunction would be seized upon by the father to his advantage.

5. Counsel for the father likewise relied upon his Outline of Case document.  He submitted that the father was law-abiding and had made all endeavours as a parent.  It was submitted he was misunderstood by many and that much of the difficulties could have been more easily remedied.  It was submitted that the school’s approach to the father's concerns was tardy.  Counsel was critical of some of the propositions put by the mother and suggested that she was a risk to the child. 

6. It was submitted that the father's concerns for the child were not malicious or the subject of psychiatric illness.  It was submitted the mother's family is wholly selfish and want to legitimise their ordering the father about.  It was submitted that the mother's conduct interferes with the father's relationship with the child and it would be a cruel mistake to reduce access.  Counsel objected to the content of the family report.  Counsel said the father's position is that his son needs to interact with the public and cannot do so because of the mother's lack of English.  It was submitted that the mother was a good nurturer, but this was not sufficient. 

Sole parental responsibility

1. If there is one thing that is clear it is that the submissions of the Independent Children’s Lawyer supported by the mother, and indeed by the recommendation of Mr H, should be sustained.  It is entirely apparent that the relationship between the father and mother is extremely poor and their capacity to communicate almost nil.  This in part springs from the father's ongoing assertions that the mother is mentally incompetent, if not psychiatrically disturbed.  I refer to the entirety of Mr H's report, but for these purposes it is sufficient perhaps to quote from paragraph 30 as follows:

   “… It is the writer's view that Mr Joyner's inability to relinquish his views, and adjust his behaviour in accordance with the evidence, has now become a significant restraint on Ms Whiteside parenting capacity and, in this context, Ms Whiteside's proposal for sole responsibility is recommended.”

2. Those observations entirely accord with my appreciation of the evidence.  The father is, I regret to say, obsessed with his conspiracy theory and this manifests itself in his response to matters to do with whether or not X has been abused, whether he is properly cared for, and whether he is the subject of ill treatment at school, (and whether the father is also not properly treated by the school).  It is clear that in all the circumstances the mother should have sole parental responsibility. 

3. As the Full Court observed in Goode v Goode, it therefore becomes a matter of considering X's best interests by reference to the matters in s.60CC of the Act.

Section 60CC(2)

1. Everybody agrees that it is desirable that X have a meaningful relationship with both of his parents.  It should be noted that Mr H was of the view that it was the quality of time rather than the quantity of time that mattered.  It should also be noted that there is a need to protect X from physical or psychological harm and from being subjected to abuse. 

2. In paragraphs 34 and 35 of his report, Mr H said:

   “34.  In conclusion, the recommendations in this report are aimed at supporting the parenting capacity of Ms Whiteside and providing stability and continuity for X.  Ms Whiteside has endured considerable assessment, scrutiny, and disruption to her role as the primary care giver as a result of Mr Joyner's allegations and behaviour.  The requirement for agencies to constantly respond to Mr Joyner's allegations risks becoming a form of systems abuse. 

   35.  It is difficult to predict the long term impact on X of constant exposure to the allegations of neglect and sexual abuse suffice to say it will be negative and psychologically damaging if it continues at its current levels.  The recommendations in this report seek to limit X's exposure to Mr Joyner's views and influence, while providing sufficient time to maintain the relationship, until X is mature enough to articulate a more definitive preference around the arrangements.”

Section 60CC(3)(a)

1. X has not expressed any views in terms, but I note the following from Mr H's report.  At paragraph 19, Mr H recorded:

   “… X reports feeling bored and unhappy at his father's, there are no computer games, and he mostly sits in the lounge and watches television when not visiting the paternal relatives.  He reports feeling confused and frightened when over held by his father and was happy and relieved when returned to his mother.”

2. From paragraphs 22 and 23 of Mr H's report, it is apparent that the interactions between the father and X were not very successful.  As Mr H reported, "There was little verbal interaction between them and Mr Joyner did not appear to have a repertoire of shared play experiences to draw on."  The interaction between the two appeared strained and lacking in spontaneity and warmth. 

Section 60CC(3)(b)

1. It is clear that X has a warm and loving relationship with his mother, but a more strained and tenuous relationship with his father.  It is equally clear from the material as a whole that he has a good relationship with his Aunt Ms A and his maternal grandmother.  I see no reason to doubt that he has a good relationship also with Y his step-sister and her mother, and with the other members of each extended family that he meets from time to time. 

Section 60CC(3)(c)

1. The mother has been an excellent mother and it is not necessary to say more than that.  The father has been precluded from participating in making decisions about X's long-term development by the conduct of the mother.  This is regrettable, but in the circumstances not in any way surprising.  The father has clearly sought to spend time with X, but it seems to me that the evidence suggests that whatever happens when X is in his care it has not produced a particularly good result (see the passage from Mr H's report above). 

Section 60CC(3)(ca)

1. I repeat once again, the mother has been a good mother; she has done all the things that would have been proper for her to do to assist X's development.  The father unfortunately has been remiss.  The over-holding of X, for reasons which have no objective basis, has plainly been both bad for his schooling and bad for X generally.  I refer once more to Mr H's report. 

2. The father is of the clear view, as expressed to Mr H, that the mother is intellectually impaired and not capable of providing appropriate care.  The father refuses to take X to his extra‑curricular sporting activities and perceives them "as an impost on his time with him" (per Mr H). 

   “… He alleges the school is responsible for much of the alleged physical abuse and is at the centre of a conspiracy to cover up their behaviour.  Organizations involved in the conspiracy include the school, police, DHS, and various medical services that have refused to act on his complaints.” (Mr H’s report at paragraph 12). 

3. At paragraph 27, Mr H recorded:

   “His concerns, complaints, and allegations have been investigated and assessed by a number of agencies and professionals over the last four years and have not been substantiated.  However, no amount of forensic examination or investigation is able to disabuse Mr Joyner of his beliefs and concerns in the matter.  There is nothing in the material before the writer that suggests Ms Whiteside's parenting is neglectful or inappropriate.  On the contrary, the material and interviews suggests she is a nurturing and skilled parent and X is thriving in her care.  In this context, Mr Joyner's application for the full time care of X is contraindicated and not recommended.”

4. In the face of findings such as these (and once again I refer to Mr H's report generally) it must be said that while the father has undoubtedly acted from what he perceives to be proper motives, his conduct has been extremely damaging to X. 

Section 60CC(3)(d)

1. The application by the father for an equal shared-care parental arrangement is plainly, as Mr H says, contra-indicated.  The observations of Mr H of the child's relationship with his parents could not be clearer.  Any endeavour to take X from his mother, as the father seeks, is not to be permitted.

2. The mother is seeking to reduce the father's time.  Mr H said in this context at paragraph 28:

   “Ms Whiteside is seeking a significant reduction in Mr Joyner's time and sole responsibility.   She is of the opinion Mr Joyner's unrelenting beliefs and behaviour are becoming a restraint to her parenting capacity, and are impacting on her ability to provide continuity and consistency in X's school and recreational life.  In general, changes to the joint responsibility provisions of family law orders is seen a measure of last resort when the conflict between the parties is viewed as intractable and or issues of family violence, mental health, or drug and alcohol dependency are apparent and considered confounding factors to a resolution of the difficulties.”

3. At paragraph 33, Mr H recorded:

   “The recent incident of over holding X appears to represent an unprovoked escalation of past behaviours.  It significantly disrupted all aspects of X's life and Mr Joyner display’s no insight or empathy into the impact of his behaviour on X or Ms Whiteside.  The psychological and emotional risk to X through prolonged exposure to this behaviour and thinking outweighs the benefits derived from a more extensive relationship with his father.  In this context it is recommended X spend time with Mr Joyner each alternate Saturday from 9.00 am until 5.00 pm and each alternate Sunday from 9.00 am until 5.00 pm.”

4. In my view the change sought by the Independent Children’s Lawyer (which is not precisely the same as that indicated by Mr H) is likely to be in X's best interests.  I note that the change proposed by the Independent Children’s Lawyer will still leave adequate time, both for a relationship with his father and with his step‑sister, Y. 

Subsection 60CC(3)(e)

1. This has little, if any, work to do in the circumstances of this case. 

Subsection 60CC(3)(f)

1. It is clear that the mother is a skilled and nurturing parent, and that Mr Joyner struggles.  The mother has the assistance of her own mother and her sister, Ms A, and the father appears to have a measure of assistance from his ex-wife, Ms H, and from his extended family. 

Subsection 60CC(3)(g)

1. Although, of course, the matters raised by this subsection are of significance, they have, in my view, been already traversed in considering the other issues above. 

Subsection 60CC(3)(h)

1. Irrelevant. 

Subsection 60CC(3)(i)

1. Once again, while this is a significant matter, it has already been assessed above. 

Subsection 60CC(3(j)

1. While the father does shout at X, I do not think that this requires further weight at this stage.  It is part of the overall picture of his poor inter-relationship with the child.  Insofar as there have been assertions that Mr A has abused the child, it is important, as I have indicated earlier, to accept that this must be taken not to have occurred. 

Subsection 60CC(3)(k)

1. Irrelevant. 

Subsection 60CC(3)(l)

1. The orders I propose to make will be the least likely to lead to the institution of further proceedings. 

Subsection 60CC(3)(m)

1. The only other matter that requires consideration is X's extra-curricular activities.  This is a matter of some difficulty.  It is clear that X likes these extra-curricular activities and it is clear that it would be in his best interests to continue them while in his father's care.  Indeed the father will almost certainly find that his relationship with the child would be better if they are continued.  The father, however, essentially seems to me seeks to exclude these activities precisely because they are fomented by the mother. 

2. In the circumstances, I will give the parties an opportunity to consider these reasons for judgment and hear further short submissions about this aspect of the matter.  In a sense, if the father is absolutely determined not to comply, I will simply be creating a further field of likely litigation.  On the other hand, orders requiring him to continue the extra-curricular activities may be so much in X's best interests that it is better to, as it were, bite that bullet.  As I say, I will hear further from the parties.

3. A further matter requiring consideration is Mr A.  I accept the submissions of the Independent Children’s Lawyer that any restriction of any sort on Mr A will only lead to the father seizing on this and causing further litigation.  There is no evidence to justify such an order and I will not make it. 

4. Otherwise I should say that the orders sought by the Independent Children’s Lawyer seem to be to be eminently in X's best interests.  I think the more limited time proposed by the Independent Children’s Lawyer is appropriate, particularly having regard to the father's evidence, by which I mean both what he said and his demeanour when he said it.  Regrettably, he is enmeshed in his view of the world and X's time needs to be reduced to avoid the danger of further systems abuse. 

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date:  9 August 2013