Wiggs and Piercy (No.3)
[2019] FCCA 3688
•20 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WIGGS & PIERCY (No.3) | [2019] FCCA 3688 |
| Catchwords: FAMILY LAW – PARENTING – Dispute about parenting arrangements for a child aged 7 who has been living with her father since early 2019 – mother proposing that the child return to live with her or alternatively live at least 50% of the time with her – father proposing that the child live with him and spend no time with the mother – where the father has an extensive criminal record and has served a term of imprisonment for dealing in methamphetamine – where the father is in a stable relationship and has not been charged with any offences for over three years – where the child has a good relationship with the father and is being well cared for by him and his partner – where there are significant concerns about the mother’s mental health and her aggressive and dysregulated behaviour – where the mother’s obsession that the child is at risk of sexual abuse from a wide variety of people impacts on her capacity to provide appropriately for the child’s day to day needs including her education and socialisation – where the mother’s relationship with the child is fractured and the child is fearful of her mother – where it is by no means assured that the father will have a trouble free future but where the court must focus on the need to protect the child from immediate risk of harm – child to continue to live with the father – where it is impossible to make an order for the child to spend time with the mother because the child would be at unacceptable risk of harm in her unsupervised care and professional supervision has been tried and has failed. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA |
| Cases cited: Sedgley & Sedgley (1995) FLC 92-263 |
| Applicant: | MS WIGGS |
| Respondent: | MR PIERCY |
| File Number: | NCC 2334 of 2018 |
| Judgment of: | Judge Terry |
| Hearing dates: | 3, 4 & 5 December 2019 |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Newcastle |
| Delivered on: | 20 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Northern Suburbs Lawyers |
| Counsel for the Respondent: | Mr Boyd |
| Solicitors for the Respondent: | Joplin Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Ticehurst |
| Solicitors for the Independent Children’s Lawyer: | Harpers Legal |
ORDERS
The father shall have sole parental responsibility for [X] born … 2012 (“[X]”).
[X] shall live with the father.
[X] shall spend no time with the mother.
Subject to Order (5) the mother is restrained from having any form of contact or communication with [X] including but not limited to:
(a)Attending any school/s that the [X] may from time to time attend;
(b)Attending any sporting or extra-curricular activities that [X] may from time to time attend;
(c)Contacting or communicating with [X] by any means including but not limited to telephone, text messages, email, post, in person or through any type of social media or phone application; and
(d)From engaging, soliciting or using any other person to contact or communicate with [X] by any means, including but not limited to telephone, text messages, email, post, in person or through any type of social media or phone application.
The mother is permitted to forward to [X] letters, cards and gifts/parcels on four occasions each year including for her birthday, Christmas and Easter. The father is permitted to inspect the letters, cards and gifts/parcels and is to hand to [X] any such letters, cards and/or gifts/parcels from the mother addressed to [X] unless he forms the view because of the content of the letters cards or gifts/parcels that it would not be in the child’s best interests to do so.
The father shall within seven days of the date of these orders inform the mother of an address to which the letters, cards and gifts/parcels may be sent and shall advise her within seven days of any change to that address.
The father shall promptly advise the mother should the child be involved in a serious accident or be diagnosed as suffering from a serious medical condition but the mother shall not be permitted to visit the child in hospital without the father’s written consent.
The mother shall keep the father advised of a mobile telephone number and email address for the purposes of the father communicating with her pursuant to Orders (6) and (7).
Pursuant to Section 11(1) (b) of the Australian Passport Act 2005 the father shall be authorised to apply for and retain an Australian Passport for the child [X] born … 2012 without the signature, consent or approval of the mother.
Pursuant to Section 65Y of the Family Law Act 1975 the father shall be at liberty to travel internationally with [X] notwithstanding the consent of the mother having not been obtained.
IT IS NOTED that publication of this judgment under the pseudonym Wiggs & Piercy (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2334 of 2018
| MS WIGGS |
Applicant
And
| MR PIERCY |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns parenting arrangements for [X] aged 7. She is currently living with her father and has spent almost no time with her mother since January 2019.
The mother is pressing for the child to be returned to her care and the orders she sought at trial were that:
i)She have sole parental responsibility for [X].
ii)The child live with her.
iii)The child spend time with the father as agreed between the parties but failing agreement as determined by the mother.
When pressed by Counsel for the Independent Children’s Lawyer during cross-examination to put forward a proposal about the time [X] should spend with her if she continued to live with the father she said that the child should spend 50 to 70% of her time with her.
The mother said that she had been [X]’s primary and often sole carer until January 2019 and had looked after the child well. She said that the father was a criminal and a drug dealer who only wanted the child because he had a new partner and might abandon her if his current relationship ended. Alternatively he could find himself again incarcerated and unable to care for the child.
The mother denied that she had debilitating mental health issues or that she exposed the child to risk of harm because of her behaviour.
The mother never abandoned her case that the child should live with her but during final submissions her solicitor did not vigorously argue for a change of residence rather he asked the court to at least make an order for the child to spend time with the mother, for the sake of both the child and the mother.
The orders sought by the father at the commencement of the trial were that:
i)He have sole parental responsibility for [X].
ii)The child live with him.
iii)The child spend no time with and have no communication with the mother.
He maintained this position during final submissions save for proposing that the mother be able to send letters, cards and gifts to the child on four occasions each year.
The father said that the child had repeatedly made it clear that she wanted to live with him. He said that the mother had meltdowns, sometimes in public, during which she was physically violent and verbally aggressive and the child was frightened of the mother and did not want to spend time with her.
The father acknowledged that he had an extensive criminal record which included convictions for supplying methamphetamine and that he had spent time in jail. However he said that he was happy in his current relationship, did not intend to go back to his former life and could be relied on to provide good long term care for [X].
A concern for the court is the mother is obsessed with the idea that the child might be sexually abused. It has led to her restricting the child’s activities and making unfounded allegations that a range of people, including the father’s partner and a worker at the contact centre, were paedophiles or had sexually abused the child.
The mother confirmed at trial that she was still concerned that the child might be sexually abused in the father’s home while at the same time agreeing that she had no basis for such a belief.
In final submissions Counsel for the Independent Children’s Lawyer supported the father’s proposal. She submitted that the child would be at unacceptable risk of harm in the mother’s care even if the time was supervised. She submitted that while there was a risk that the father would return to his old ways or separate from his current partner the focus had to be on the need to protect [X] from immediate risk of harm and she was safely and happily placed with the father at present.
For reasons now to be given I am satisfied that the only orders I can make are the orders proposed by the father.
The evidence
The mother relied on her affidavit and the affidavit of her psychologist Mr E, both filed on 27 November 2019.
The father relied on his affidavit and the affidavit of his partner Ms C, both filed on 27 November 2019.
The Independent Children’s Lawyer relied on the affidavit of Ms F with whom the child has had some counselling and a Family Report was prepared by Ms G, a Regulation 7 family consultant.
All of the witnesses were cross-examined.
The evidence of both the mother and the father causes me concern.
There was a disjunct between the evidence the mother gave about what happened at the family report interviews in April 2019 and at the contact centre on 28 June 2019 and the information given by the professional people who were present. In each case the mother gave a benign version of events whereas the version of events given by the third parties suggested significant loss of control by the mother resulting in significant distress for [X].
The versions of the third parties fitted better with other evidence in the case such as the evidence about the mother losing control during a confrontation with Ms C in the street in February 2018 which resulted in an ADVO being made for Ms C’s protection and the numerous abusive text messages she has sent to the father over a period of nearly two years which she agreed were her way of venting.
I have considerable reservations about the weight I can place on the mother’s evidence not only about the events referred to in paragraph 20 but generally.
The father has had extensive involvement with the criminal justice system and I had a strong impression while listening to him being cross-examined that he had learned to make no admissions, provide as little information as possible and if necessary resort to “I don’t recall” whenever he was questioned.
To some extent the problem with the father’s evidence was that he was economical with the information he provided but his evidence about his alcohol consumption was contradictory. His alcohol consumption is not an issue of concern but the fact that he gave contradictory evidence about it and the fact that I formed a strong impression that he told me as little as possible about some matters means that I have concerns about how reliable his evidence is overall.
Against this background of unreliability I will have to pick my way through the evidence and make the best findings I can about issues in dispute with the aid of the documents in the tender bundle.
Background
The mother is 33 and father 37. They commenced a relationship in 2010 according to the mother or in or around 2011 according to the father and separated in 2015 according to the mother or 2013 according the father. They have one child, [X], who was born on … 2012.
The parties never lived continuously together and it is impossible for me to make a finding about the state of their relationship between 2013 and 2015.
Some of the information in the COPS records suggests that the relationship was still ongoing in October 2013[1] but ended then, and the father formed another relationship in 2013 and he has a son born in February 2014. However he spent Christmas 2015 with the mother and [X] and was at the mother’s flat on 27 December 2015 when she had a meltdown and was taken to Hospital H.
[1] Tender Bundle page 153
It could be that after October 2013 the father only kept in contact with the mother in order to see [X] who was still a baby and that the mother wrongly assumed that this continued contact meant that the relationship might be rekindled, or it could be that they had an on/off relationship. I don’t know, but nothing turns on the fact that I cannot make a finding about the nature of the parties’ relationship between 2013 and 2015.
[X] is the mother’s only child. However the father has three other children: [I] born in about 2009, [J] born in 2014 and [K] born … 2019.
Both parents, for different reasons, had a traumatic upbringing.
The mother has consistently maintained and continued to maintain throughout the trial that she was sexually abused by her father and her older brother as a child and that as a result she suffered from PTSD.
No charges have been laid in respect of these matters and the mother is not currently undergoing any sexual assault counselling but her assertion that she had been sexually abused was not challenged by anyone in these proceedings.
The father grew up on Region L of New South Wales and his parents separated when he was about 9. He said that his parents were alcoholics and that his father was extremely violent.
As far as I can make out after the father’s parents separated he lived with his mother in Sydney. He mentioned having been in a Boys Home but whether this was due to lack of adults to care for him or the fact that he began to commit criminal offences when he was 13 I cannot be sure.
The father has an extensive criminal record and has served terms of imprisonment, the last one being in 2017 after he was convicted in 2016.
The father said that after [X] was born he was a hands on father and assisted with [X]’s daily care and needs. The mother disputed this and claimed that he did little for her and was hardly ever there.
I accept that the father was interested in [X] and I consider it likely that he did some caring tasks for her when he was available but he and the mother never lived continuously together, the father described himself as a fly-in fly-out worker during their relationship and he served a period of imprisonment in 2013. On any view the mother was [X]’s primary and sometimes only carer after her birth.
The picture painted by the mother in her affidavit was that she allowed the father to spend time with [X] whenever he was available. The father said that the mother did not allow him to spend regular time with [X] and would only allow him to spend supervised time with her five or six times a year. He said that the mother would verbally abuse him when he tried to talk to her about seeing [X].
The mother was a very unreliable witness and often gave evidence which was at odds with the way other people saw things and there are text messages in evidence in which she castigates the father for being in another relationship and tells him he has no rights. I consider it likely that the mother did put roadblocks in the way of the father spending time with [X] but things going on in the father’s life (including imprisonment and his fly-in fly-out work) must have contributed heavily to the fact that he did not spend extensive time with [X] when she was younger.
The father spent time with the mother and [X] at Christmas 2015 and on 27 December 2015 there was an incident which led to neighbours calling the police.
The father said that the mother had a meltdown and was screaming and threatening suicide and telling him that she was remembering things which had happened to her as a child and Police called an ambulance and the mother was taken to hospital and scheduled. The information she gave to the hospital coincides with what the father said about why she had a meltdown.
The mother was only in the hospital briefly. She was released to the care of her GP and from the information in the tender bundle it appears that it was at this time that she started seeing Mr E.
In May 2016 the father was arrested on charges of supplying methamphetamine, small quantity. Later in 2016 he met Ms C and formed a relationship with her but in August 2017 he was sentenced to a term of imprisonment in respect of those charges and he was in prison until November 2017.
There were a number of incidents between the mother, the father and Ms C during the 2016-2017 period.
Ms C said that in November 2016 the mother appeared outside the father’s house while she was there and screamed out words to the effect of “Come out cunt” “I need money for [X]” “I know you live there.” She said that she and the father were afraid to leave and the mother continued to walk up and down for some time knocking on neighbour’s doors.
Ms C said that in in January 2017 she was at the gym with the father when the mother showed up with [X] and screamed at the father and also hit and kicked him and the gym owner asked her to leave.
Ms C was a witness of credit and I accept her evidence that there were incidents outside the house and at the gym and that the mother behaved in a dysregulated manner. However the father did not mention the incident at the gym and I am not prepared to find that the mother assaulted the father on that occasion.
In 2016-2017 there were also some significant issues in [X]’s life while in the mother’s care.
In October 2016 the mother alleged that [X] had disclosed that the maternal grandmother[2] had sexually assaulted her. She took the child to the hospital where she was medically examined which did not reveal any physical injuries. The matter was referred to JIRT but JIRT declined to investigate. No charges were laid and no ADVO was made for [X]’s protection and she continued to have some association with the maternal grandmother.
[2] Called by [X] “Nan A”. The father is Aboriginal and [X] calls her paternal grandmother
Within a few days of the mother taking [X] to the hospital about the sexual abuse allegation she took [X] to the Emergency Department with an injury to her arm. She said that [X] had called out to her while in the foam pit at a sporting venue and she pulled her out by the arm and may have pulled her elbow. [X] was suspected to have a fracture and her arm was put in plaster although as it turned out it may just have been a dislocation.
There is reference in the hospital notes to the mother having been angry when she pulled [X] from the pit.
During cross examination the mother denied that she had deliberately hurt [X]’s arm or pulled her out angrily.
On 2 June 2017 the mother had a physical fight with her sister Ms M in [X]’s presence. The mother reported the matter to police and is named as the victim in the COPS record.
Both parties told police the fight was over the mother’s care of [X]. Police could not be satisfied which party was telling the truth and did not lay any charges. However interestingly their notes about their interview with the mother’s sister include the following:
The defendant tells police that she stepped in between the child and the victim, defending the child from being physically assaulted. The defendant tells police that the victim previously admitted to her that she was responsible for dislocating the child’s arm when she became angry at her. The defendant tells police she did not want the child to be injured again and has grabbed the victim in a bear hug and a short struggle ensured.[3]
[3] Tender Bundle pages 149, 150
In mid-2017[4] the mother formed a relationship with Mr B. Mr B has convictions which begin in 2002 when he was a juvenile for offences which include aggravated assault, robbery in company, possessing implements for breaking into motor vehicles, driving offences, common assault, possess a prohibited drug, destroy and damage property, assault occasioning actual bodily harm, shoplifting and goods in custody, threaten to injure with the intent to commit an indictable offence, contravene an ADVO and assault occasioning actual bodily harm again.
[4] Mother’s answer in cross-examination
On 16 January 2018 the mother was assaulted by Mr B. She did not provide any details of this assault in her affidavit but she went to hospital and required stitches. Hospital records state that she reported that Mr B hid her wallet and phone before hitting her in the face and kicking her in the head after she fell. He punched a wall and after she managed to leave he followed her and verbally abused her and continually kicked the door trying to get in until police arrived and arrested him.
The father had been released from jail in November 2017 and was seeing [X] at this time. He said that when collecting her from the mother he saw the mother with blood on her ear near her hair and that [X] told him that “Mr B had bashed Mum.” He spoke to the mother who told him that Mr B was in jail. He said that as a result he had no further concerns about [X]’s safety in the mother’s care.
Mr B was charged with resist arrest, assault and destroy and damage property but the charges of assault and destroy and damage property were withdrawn. It appears that this was because the mother did not turn up to court.[5] He was sentenced to two month’s imprisonment for resisting arrest.
[5] Tender Bundle page 142
The mother admitted during cross-examination that she knew about Mr B’s convictions when she commenced a relationship with him. She said that she now regretted forming a relationship with him so quickly and did not think he would turn on her.
Although the mother seems around this time to have been facilitating visits between the father and [X] he had commenced living with Ms C following his release from jail and the mother had a huge issue with this. On 20 January 2018 she sent the father a series of text messages which included the following:
U won’t get any rights ur not entitled to any.
If u never wanted me u should have never made a child with me fukwit
Y the fuk would u try to get my daughter when u Hav her u fukin cunt she is all I Hav
[X] knows too by the way and hates u[6]
[6] Exhibit E
On 8 February 2018 the mother sent the father a text message saying:
Answer your phone cunt or I’m coming around to bash your missus.[7]
[7] Ms C’s affidavit paragraph 35
She also sent Ms C a text message saying that she was coming around to damage her car.
Later that day the mother turned up at the father’s home. Ms C said that when the mother arrived she yelled abuse which included the words “You’ve left [X] and I to be with this fucking dirty slut.”
Ms C went outside and approached the mother. She said that the mother punched her in the face and after a further scuffle threw multiple punches at her which struck her in the lip, shoulder and side of the head. She said that the mother suddenly stopped the assault, went to her vehicle and drove off.
Ms C went straight to the police station and reported the assault. Police took out a provisional ADVO for her protection and according to the COPS record observed some injuries.
While at the police station Ms C showed the police the text message the mother had sent to the father. As a result the mother was charged with using a carriage way to menace or harass and she later pleaded guilty to that charge.
The mother was not charged with any offences in relation to the incident with Ms C because the parties gave a conflicting version of events.
The mother said in her affidavit that she did not go to the father’s home looking for a fight but went to collect gifts and money the father had promised her. She said that the father verbally abused her when she arrived. She said that Ms C came out and grabbed her by the throat and she reacted and they had a physical altercation.
I do not accept the mother’s evidence and am satisfied on the balance of probabilities that she assaulted Ms C.
Ms C was a very good witness. There was nothing about her presentation in court or her answers in cross-examination which caused me to be concerned about her evidence. There is nothing anywhere in the evidence to suggest that she is prone to aggression. On the other hand there is plenty of evidence that the mother is, including the text message she sent the father contemporaneously with the incident on 6 February 2018 and the information in the contact centre notes about the incident on 24 June 2019.
It is unclear to me exactly how much time the father spent with [X] after the 8 February 2018 incident but he said that in or around July 2018 he became aware that Mr B was out of jail and believed that the mother had resumed her relationship with him and became concerned about [X]’s safety.
During cross-examination the mother was evasive about whether she resumed her relationship with Mr B following his release from jail but in July 2018 there was a further incident at her home. Mr B came to the home and tried to enter the mother’s car when she pulled into the driveway. The mother reversed and Mr B jumped on the bonnet, grabbed the windscreen wiper and verbally abused the mother.
The mother went to the police station to report the incident and Mr B was charged with destroy and damage property. Subsequently a second ADVO was taken out for the mother’s protection from Mr B.
The father did not mention this in his affidavit but said that as a result of things [X] said to him he became concerned that she was being exposed to family violence in the mother’s care and on 31 July 2018 he collected her from school and retained her in his care.
On 2 August 2018 the mother filed an application for a recovery order. She said that she had always been [X]’s primary carer and that she was no longer in a relationship with Mr B and an order was made for [X] to be returned to the mother and to spend time with the father from 10.00am until 4.00pm each alternate Sunday.
The father said that the mother frequently failed to comply with the order for him to spend time with [X] and that on a number of occasions when he and the mother came into contact about this or he attempted to collect [X] the mother lost control and screamed, cried and swore regardless of whether [X] was there or there were other people around.
He said that this happened at the police station when she collected [X] at changeover for his first visit after the orders were made on 2 August 2018; through the intercom when he tried to collect her on 2 September 2018; over the phone on 16 September 2018 when the mother did not attend the changeover location; and on other occasions during 2018 when he tried to collect [X].
The mother made some admissions about this behaviour during cross-examination.
She agreed that she had told the father Ms C was creepy and asked if she was a paedophile and then said “She is a paedophile”.
She admitted that on 16 October 2018 after the parties ran across each other at Shopping Centre NSuburb T she screamed abuse and profanities at the father to the effect of:
You’re a fucking dog. Ms C is a fucking paedophile. She is a creep. Stop sending me emails. Its harassment. You’re just a cunt. Leave my daughter alone.[8]
[8] Father’s affidavit paragraph 58
I accept the father’s evidence that he was shocked and that everyone in the general vicinity was staring.
I accept the father’s evidence that the mother dished out the verbal abuse set out in paragraphs 45, 47, 49, 53 and 57 of the father’s trial affidavit with no regard for the fact that [X] was present.
On 28 November 2018 the parties took part in a Child Inclusive Child Dispute Conference at the court. In the memorandum the family consultant prepared she expressed concern about the mother’s presentation. This led to the father pressing for an order for the child to live with him.
I conducted an interim hearing on 21 December 2018 and for reasons given at the time made an order that [X] live with the father.[9] The mother was not in attendance that day, had not attended a previous court event and appeared not to be complying with the spend time with orders and I also issued a recovery order.
[9] Wiggs & Piercy [2018] FCCA 3992
On 16 January 2019 police executed the recovery order and [X] was delivered to the father and has lived with him ever since.
On 21 January 2019 the mother filed an application in a case seeking to have [X] returned to her care. This was unsuccessful but orders were made for [X] to spend time with the mother supervised at Town W Contact Centre and a family report was ordered.
The family report interviews took place in April 2019.
The family report writer said that the mother caused a scene at the family report interviews. She said as follows:
The mother presented at the Family Consultant’s office considerably earlier than the designated time despite having been instructed by the Family Consultant to come later due to the concern to keep the parties from coming into contact. Her demeanour was extremely aggressive, and she came to the door of the Family Consultant’s office and demanded to see [X]. The Family Consultant needed to position herself at the door as it was clear that [X] had become distressed at the sight of her mother. The mother was asked to return at the allocated time, to which she replied in an aggressive, loud tone, ‘I want to see my daughter. I want to see her now.’ The Family Consultant reiterated that this was not her time to come to the office and asked her to leave the premises until the time of her interview. The Family Consultant repeated her request several times and the mother eventually left commenting that the father ‘is brainwashing her daughter’. [10]
[10] Family Report paragraph 34
As a result of the incident and [X]’s distress about it the family report writer decided not to do an observation with [X] and the mother.
The mother denied that she came early or was angry or caused a scene but she was not a witness of credit and the behaviour described by the family report writer is consistent with the way the mother has behaved on numerous other occasions. I prefer the evidence of the family report writer about what occurred on the day of the interviews.
The matter was mentioned before me on 17 June 2019. It was clear from the contents of the family report that there were no prospects of resolution and the matter was listed for final hearing on 3, 4 and 5 December 2019.
Shortly prior to this the parties had reached the head of the queue for a place at the contact centre and the mother’s first visit with [X] took place on 14 June 2019. The mother said that this visit went well and that [X] asked to go home with her. The contact centre notes do not support that last proposition but do state that at the end of the visit [X] expressed disappointment that the mother had to leave.
There are a number of references in the contact centre notes for that day to the mother questioning [X] and being pulled up for doing so only to resume doing so later but the visit went for the full two hours.
The father said and I accept that at about 7.30pm that night police knocked on his door and said that there had been a report of sexual abuse of [X]. He was asked to get [X] out of bed and she was spoken to by the police.
There is no doubt that the mother made the call to police. She rang the contact centre on 21 June 2019 expressing concern that [X] had identified a penis on a boy baby doll and saying that [X] should not know the name of this and that it seemed “very paedophilish” and she told the contact centre that she had raised concerns about it with the police and DOCS.
The next visit was on 28 June 2019.
The contact centre notes state that part way through the visit the mother was requested not to say certain things to [X] and she became upset and started talking loudly in an agitated manner. She said that she would ask [X] whatever she wanted and speak to her daughter “However she damn well pleased.”
The mother agreed during cross-examination that this had occurred.
The notes record that the mother said loudly to [X] “Let’s go” and that one of the workers took [X] to a nearby office. The notes then say as follows:
[X] had a terrified look on her face and remained very anxious as she heard her mother talking loudly outside the room. She would not look at the worker but sat very till, staring ahead and appearing to be frozen with fear.[11]
[11] Tender Bundle page 326
The workers tried unsuccessfully to calm the mother down and the notes go on to say as follows:
Ms Wiggs would not engage in any reasonable discussion and said that [X] was being sexually abused in the room with the worker. Ms Wiggs barged open the door and forced herself into the room. She grabbed onto [X] trying to pull her out of the room. The two workers intervened, blocking Ms Wiggs’s exit and separating her from [X]. A third worker removed [X] from the room and the duress alarm in the room was pressed as well as a personal duress alarm. [X] was taken to a safe area away from her mother and given reassurance by the worker.[12]
[12] Tender Bundle page 326
The notes then refer to the mother yelling and swearing and engaging in a seemingly uncontrollable monologue of her concerns that no-one was doing anything to help her. The notes state that the mother accused the father and his partner of abusing [X] and said that his partner could be abusing her on the way to the visits.
Police arrived and spoke to the mother and encouraged her to do the right thing and eventually the mother left.
During cross-examination the mother made some admissions about her behaviour that day but said that the workers assaulted her and that she felt threatened and intimidated.
I accept that the contemporaneous notes made by the contact centre are generally accurate. The behaviour they describe is similar to other dysregulated aggressive behaviour by the mother and it is not credible that the mother would have been assaulted by workers at the contact centre.
After this incident the contact centre declined to further provide a service.
On 23 July 2019 the mother filed an application in a case seeking an order that the child live with her and this came before the court on 16 September 2019. The court could not make that order nor in the circumstances of the case was it prepared to make any further orders about the child spending time with the mother pending the final hearing in December 2019.
The trial proceeded on 3, 4 & 5 December 2019.
The parties’ current circumstances
The mother has at all relevant times lived in Region D and she currently lives at Town P. She is a trained hairdresser but is not currently employed and she is not currently in a relationship.
If [X] returned to live with the mother she could continue to attend Town P Primary School where she commenced school in 2018 although whether she would do so is another matter. The mother has expressed a strong dislike of and distrust of this school.
The father and Ms C live in Suburb Q in Region D.
The father is a shearer by occupation but he is currently operating a business in Region D.
Ms C is 37 and has two children, [R] aged 9 and [S] aged 4. They live with her and Mr Piercy and spend time with their father. The mother and Mr Piercy have a child [K] born on … 2019.
Ms C is involved in the operation of employment agencies but is currently on maternity leave.
The father said that if [X] continued to live with him he would like to change her school to Suburb T Public School so that she attended the same school as [R].
[X]’s best interests
Any orders I make about [X] must be orders determined by treating her best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine her best interests.
The primary considerations are the benefit to the child having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
S.60CC (3) contains a number of additional considerations. Findings about these will inform the findings I make about the primary considerations and as I frequently do I intend to start by making findings about the additional considerations.
The first of the additional considerations is any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
After [X] came into the father’s care on 16 January 2019 he took her to see Ms F, a psychologist, for the purpose of providing her with some support. Ms F’s records were produced in answer to subpoena and the tenor of the note she made on 26 January 2019 was that [X] was happy in her new family setting.
Following a session with [X] on 16 April 2019 Ms F wrote this:
When I asked [X] about visiting her mum she said she didn’t want to go because “she will not bring me back”, I prompted “has she not brought you back before” and she said “yes”. …[X] said she wants to stay with Dad and Ms CMs C, she is happy.[13]
[13] Tender Bundle page 296
The family report writer interviewed [X] in April 2019 and she said as follows:
[X] stated that she wanted the Judge to know that she wanted to live with her father and that she doesn’t want to see her mother. She stated that she is scared that if she sees her mother she will not be returned. [X] also stated that she wanted the Judge to know that she is unsafe with her ‘Nan A’ and shouldn’t see her.
[X] had a session with Ms F on 2 July 2019 following the contact centre visit on 28 June 2019 and Ms F’ notes include the following:
I asked if she saw her mum last week and she said yes. She said I played with another nice family at the play centre. I went outside when the police came. Mum made Ms U [a contact centre worker] cry. I asked her if she wanted to see mum again and she said no, mum makes me scared.[14]
[14] Tender Bundle page 403
Neither Ms F nor the family report writer were challenged about the accuracy of their reports about the things [X] had said.
The family report writer said as follows about the views [X] expressed to her:
The views expressed by [X] are consistent with the needs and attachments of the child. [X] appears to recognise that her life has become far more settled and secure since commencing living with her father.
I am satisfied that [X]’s current views are that she wants to live with her father and does not want to spend time with her mother. However she is only 7 and her views do not determine the matter.
I must consider the nature of the child’s relationship with each of her parents and any other person including a grandparent of the child.
The mother said that prior to 16 January 2019 she was [X]’s primary and indeed mostly sole carer. She did not accept that [X] had a poor relationship with her and said that on 14 June 2019 [X] wanted to leave the contact centre with her.
The father maintained that [X] did not have a good relationship with her mother and was fearful of her and there are a number of pieces of evidence which taken together suggest that this is so.
[X]’s school made a notification to the Department of Communities and Justice (DCJ) in 2018 which included concerns about [X] telling them that her mother had smacked her and that she was fearful of telling her mother that she had lost her drink bottle.
[X] told her counsellor in April 2019 that she was afraid that the mother might not give her back if she spent time with her and the family report writer said this:
[X] stated in interview that ‘when I see my Mummy my legs shake so I try to get up high so that she doesn’t get me … I just try and get out of my Mum’s arms to get away’. [15]
[15] Family Report paragraph 45
The contact centre workers described [X] as “frozen with fear” during the incident on 28 June 2019 and the mother agreed during cross-examination that the yelling on that occasion would have frightened [X].
[X] told Ms F on 2 July 2019 that her mother made her scared.
In her notes about a session with [X] on 30 July 2019 Ms F said as follows:
She said that she saw her mum at school yesterday. She said she was playing in the playground and saw her mums car 3 times. She said her mum waved and said hello until the teacher asked her to leave. She said she felt really scared and that her mum was going to take her away. She said that when she was gone she was happy to go back to playing with her friend [V]. [16]
[16] Tender Bundle page 404
At the end of her report the family report writer referred to the mother as [X]’s primary attachment figure. This description does not sit comfortably with numerous other observations and references in the report to the effect that [X] was afraid of the mother and it may be that the report writer in fact intended to convey that the mother had historically been [X]’s primary carer. The mother is certainly not [X]’s primary attachment figure at present and I do not accept that [X] has a good and close relationship with her mother, rather [X] is afraid of her.
The only member of the maternal family with whom [X] seems to have spent much time with is the maternal grandmother.
In 2016 [X] made a disclosure about her maternal grandmother sexually abusing her which resulted in in the mother taking her to the hospital. She has spent time with her maternal grandmother since; for example she said that her “Nan A” looked after her following the mother being assaulted by Mr B. However she told the family report writer that she was unsafe with her “Nan A” and didn’t want to see her.
I cannot make a finding on the state of the evidence that the maternal grandmother sexually abused [X] and the issue of whether [X] might have adopted a view held by others in that regard was not explored at trial.
The maternal grandmother did not attend the family report interviews and did not give evidence. She has not seen [X] for at least as long as [X] has been with the father and [X] has no relationship with her at present.
The maternal grandfather sat in court throughout the trial which was a little discomforting given the mother’s evidence that he had sexually abused her as a child. There was no evidence of him ever having had a relationship with [X] and in the light of the mother’s allegations it is to her credit if she has prevented that occurring.
There is abundant evidence that [X] has a good relationship with the father.
When the police delivered [X] to the father’s home on 16 January 2019 they said that she seemed happy to see him. She told her counsellor in April 2019 that she was happy living with him and the family report writer said as follows about the observation session at the family report interviews:
The observation of the father and Ms C with [X] suggested a loving and playful relationship. The father was relaxed and engaged with [X] and was attentive to her needs throughout the session.
The interactions with the father were loving and affectionate and [X] appeared happy and confident.
The father and Ms C were able to play easily and set age appropriate limits on [X]’s behaviour.
Ms C was sitting on the floor with [X] and playing with a doll house and [X] appeared to enjoy this greatly. The father also engaged easily with [X], but Ms C initiated more of the play.[17]
[17] Family Report paragraphs 86-89
There are also little snippets in other material such as the contact centre records and Ms F notes which refer to [X] smiling when she saw the father and being comfortable with him. I am satisfied that [X] and the father have a good relationship.
The above passage from the family report suggests that she also has a good relationship Ms C and I am satisfied that this is so. During cross-examination Ms C provided insightful answers about [X] and her place in the family.
The father said that he had a large family and that he encouraged [X] to have a relationship with them. He also said that they provided him with assistance and support. However it became apparent during cross-examination that his relationship with his family members may not be as rosy as he wished the court to believe.
In 2013 the father’s two brothers staged a home invasion and assaulted him with a metal bar and fractured his jaw. He refused to assist police with their inquiries. He did not give any detailed evidence about his current relationship with his brothers.
The paternal grandmother was previously an alcoholic and has been reported to have mental health issues. The father did not give detailed evidence about his current relationship with her either.
The extent to which the father has a good relationship with his family, the extent to which they provide him with support and the extent to which [X] has a relationship with them is something I am simply unable to assess.
The father did not mention [X]’s siblings [I] or [J] in his trial affidavit. During cross-examination he said that he had a good relationship with them but he seems to have spent little time with them recently and [X] has not met them. When questioned about this he gave some reasons for it including that at least one of the mother’s lived a long way away in rural New South Wales but I have no yardstick against which to assess this evidence.
It is reasonable to find based on Ms C’s evidence and the information in Ms F notes that [X] has a normal sibling relationship with her step-siblings [R] and [S] and a fond relationship with her baby sibling [K].
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child.
This was not raised as an issue by either party.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the child, to spend time with the child and to communicate with the child.
The mother stressed that she had always been there for [X] whereas the father was more often than not unavailable to care for her.
I accept that this is a reasonably accurate account of the history of [X]’s care. The father was often absent either for work, because he was pursuing other relationships or because he was in jail. He was clearly not prioritising [X]’s interests when he committed offences which resulted in him being imprisoned and unavailable to be a meaningful part of the child’s life.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of her separation from either of her parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living.
As is so often the case it is impossible to make a finding about this until I make findings about the remaining s. 60CC (3) matters and the s. 60CC (2) matters.
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The parties both live in Region D and there would be no practical difficulty or significant expense involved in the child moving between their homes.
A practical difficulty would arise however if the only time the court could consider was professionally supervised time.
Town W Contact Centre refused to supervise time after the incident on 28 June 2019 and there have been no changes in the mother which suggest they might be persuaded to revisit that refusal. In addition centres such as Town W often decline to provide supervision after final orders are made and if they do it is usually not for an indefinite period.
There was no suggestion at trial that an organisation such as Rekonnect or Big Brown House would be suitable.
In order to give the parties procedural fairness I would have to relist the matter to discuss these supervision options if I was considering them but the mother’s behaviour on 28 June 2019 was so extreme and so concerning (including an attempt to drag the child from a room) that I would not be willing to consider making an order for time outside a contact centre absent evidence that the mother had addressed her issues with aggression and dysregulated behaviour.
I must consider the capacity of each parent to provide for the needs of the child including her intellectual and emotional needs.
The mother said that she had looked after [X] from her birth in 2012 until she was removed from her in January 2019 over six years later and that she had always provided well for her needs and could be relied on to do so in the future.
The father did not accept this and raised numerous concerns about the mother’s care of [X].
One was about her school attendance and achievement and I am going to discuss and dispose of that first.
[X] commenced kindergarten at Town P Public School in 2018 and was in Year 1 in 2019. There was a dispute about whether her achievement at school had improved or declined this year but as was discussed during the trial the reports for her kindergarten year and the reports for Year 1 are in a different format which makes comparison of them difficult. Both reports suggest that [X] is acquiring knowledge and making progress.
The father pointed to the fact that the school had raised concerns with the mother about [X]’s attendance during 2018. The mother maintained that [X] missed school because she was sick. The father said that this was not the whole of it and that she also missed school because mother’s paranoia about [X] being bullied, neglected by her teachers and exposed to risk of sexual harm.
The school records suggest that the mother did have medical certificates for a number of [X]’s absences. [X] does not appear to have attended pre-school and I cannot exclude the possibility that she did have a lot of illness during 2018.
I do have concerns about how the mother’s paranoia about [X] being sexually abused has impacted on the child’s engagement at school and attendance at school events but I will deal with that as a separate issue. I cannot make a concluded finding that the child had an unreasonable number of school absences in 2018.
There are a number of reasons to be concerned about the mother’s capacity to provide for [X]’s needs including her emotional and intellectual needs and they arise out of:
i)Her propensity to behave in an aggressive, violent and dysregulated way.
ii)Her exposure of [X] to violence perpetrated by Mr B
iii)Her obsession with the idea that [X] is being sexually abused.
iv)Her mental health which has led to some presentations at hospital.
I will discuss each of these in turn.
The mother’s propensity to behave in an aggressive, violent and dysregulated way
There are numerous examples of the mother behaving in an aggressive, dysregulated and sometimes violent way to the father and Ms C and I have referred to those earlier in the judgment. They cannot be brushed aside as being the product of the mother’s distress at the order made on 21 December 2018 for [X] to live with the father. Many of the examples pre-date that.
[X] has witnessed the mother’s behaviour on numerous occasions. I accept Ms C’s evidence that she was present at the gym. She was also present on 8 February 2018.
The mother denied that [X] was present during the 8 February 2018 incident but the following passage from the family report suggests strongly that she was. The report writer said as follows:
Mum always yells at my Dad. She came to Ms C’s house. She said she was going to break the side windows of the car. My Mum started to hurt Ms C. Mum said Ms C had a knife, but she didn’t. Mum said Ms C pushed her on the road, but she didn’t. Blood was coming out of Ms C’s eye. We were so afraid. Summer and [S] were afraid because that’s their Mum.
[X] has been exposed to a number of incidents in which the mother has lost control and threatened and hurt others and she was exposed to the mother’s out-of-control behaviour on 28 June 2019. It is no wonder that she is frightened of her mother.
The family report writer expressed concern about the mother’s lack of empathy for [X] and lack of insight into the impact of her behaviour on [X]. Nothing which was said or done at trial suggested that the mother had gained any insight or empathy since the last incident at the contact centre, and the impact of exposure to the mother’s behaviour is to make [X] frightened and distressed.
The mother’s exposure of [X] to violence perpetrated by Mr B
[X] was present when Mr B assaulted the mother on 16 January 2018. She referred to it in conversation with the family report writer who said as follows:
[X] stated, “My Nan A hurt me in my private parts. She hurt me more than one time. She was looking after me at night because this boy Mr B came and hurt my Mum and punched her and pulled her hair out. He punched a door and said he was going to put a hammer in her eye. He came to Mum’s, so I went to Nan’s house.[18]
[18] Family Report paragraph 77
The entirety of the evidence in the mother’s affidavit about Mr B was as follows:
I am no longer in a relationship with Mr B. I met Mr B in 2017 and we were together until early 2018. At first he treated me well but in 2018 he began to behave in a threatening manner toward me and on one occasion he attacked me as a result of which I terminate the relationship in July 2018. The police issued an AVO on my behalf in July 2018 against him. I have not seen Mr B since.[19]
[19] Mother’s trial affidavit paragraph 35
I accept that the mother was the victim of an assault by Mr B on 16 January 2018 and the victim of his behaviour on 16 July 2018 when he damaged her car but she expressed no remorse for how her decision to trust Mr B and form a relationship with him had played out for [X] and no glimmer of recognition about the harm done to [X] by seeing her being assaulted.
There is considerable force in the following observation by the family report writer:
It is doubtful whether the mother has the insight to be aware of [X]’s need for protection and to live a life free of both experiencing and witnessing violence and aggression.[20]
[20] Family Report paragraph 42
The mother’s obsession with the idea that [X] is being sexually abused.
The mother’s parenting capacity is seriously compromised by her obsession about whether [X] is being sexually abused.
The mother admitted that she had not permitted [X] to go on a school excursion because she did not know the adults who would be attending. She took [X] to a school disco and then tried to remove her notwithstanding [X]’s protests because the school asked the parents to wait outside the room. She complained about not being allowed in and asked whether the DJ had a working with children’s check. She was eventually placated by a door being kept partially open and she allowed [X] to remain.
On 16 January 2019 after the recovery order was executed the mother rang Kids Helpline and said that she was concerned that [X] might be sexually abused in the father’s home. She alleged that Ms C had taken photos of [X] in the bath, that she would not let her shut the door when getting dressed, that she kept looking at her inappropriately without her clothes on and that she knew a convicted paedophile called Ian.
The mother sent the police around to the father’s home on 14 June 2019 after the first visit at the contact centre stating that this was because she was concerned that [X] had recognised a penis on a boy doll. The father had to get [X] out of bed and show her to the police.
During cross-examination the mother agreed that she still considered that [X] was at risk of sexual harm in the father’s household while at the same time admitting that she had no basis for that belief.
The mother’s obsession has the capacity to impact on many facets of [X]’s life. It could impact on her education and socialisation if [X] lived with the mother indeed it already has. It could impact on her capacity to have a relationship with her father and Ms C. Repeatedly hearing from the mother that she was at this risk of sexual abuse would be confusing and upsetting for [X] if it was not part of her lived experience.
The mother does not accept that her obsession about [X] being sexually abused is an issue and it is not being addressed in her counselling with Mr E.
The mother’s mental health
The mother had a brief admission to Town Y Mental Health Unit in January 2015 after having an episode due to the resurfacing of memories of childhood sexual abuse. From about September 2016 she had regular sessions with Mr E.
Mr E provided a report for the mother. He said that she was referred to him by her GP in September 2016 for mixed anxiety and depression and reactive stress secondary to a traumatic past and prior and continuing emotionally and psychologically abusive partner and that he had seen her regularly since then.
He said that he was treating the mother with CBT and other forms of therapy and expressed the view that with continued psychological work and parenting courses she would be able to develop a healthy parenting style to assist [X] in her development.
He did not agree that she had any mental health issues which impacted on her parenting capacity.
However he did not reveal in his report that he had any knowledge of incidents of aggressive behaviour by the mother including the incident which led to her conviction in February 2018 and very unhelpfully for the mother he said as follows in his report:
Working with Ms Wiggs through this process and watching her decline as a result of how the system has treated her and her daughter will have detrimental long term effects on both of them and their relationship.
Mr E did not suggest in his report that he was addressing the issue of the mother’s sexual abuse with her. When he was asked about it in cross-examination he dismissed it as an unimportant issue. The mother said during cross-examination that she had done two sessions of sexual abuse counselling with a specialised clinic but had then resumed seeing Mr E.
The treatment the mother is receiving at the moment is ineffective to deal with the issues which stand in the way of her having substantial involvement in [X]’s life. Notwithstanding seeing Mr E regularly during 2018 and 2019 the mother has had numerous episodes of aggressive dysregulated behaviour and is still floridly obsessing about [X] being sexually abused.
She has also had a further presentation at hospital. On 24 August 2019 she presented at Hospital H Emergency Department with suicidal thoughts. She was assessed and referred to the MH Acute Care Team and to her GP for follow ups.
The mother has no plans to cease seeing Mr E and seek alternative assistance to deal with her behaviour and mental health issues and I can have no confidence that anything is going to change in that regard.
The father is doing a capable job parenting [X] on a day to day basis. She is attending school regularly and there are no issues with her physical care.
The father has been responsive to [X]’s emotional needs. He arranged for her to talk to a psychologist after she came into his care in January 2019 and has taken her to a number of sessions.
The father is not and never has been a drug user; that was not in dispute.
The father was questioned about his alcohol consumption during the trial and he gave some inconsistent answers. At one point he said that he had not consumed alcohol for ten years and this is consistent with the information he gave to the family report writer.[21] However when he was asked about an entry in the COPS records which stated that when police were called to an address in Region D in 2012[22] he and the mother of one of his children were both observed to be intoxicated he said that he could not remember whether he had been drinking on that occasion.
[21] Family Report paragraph 27
[22] Tender Bundle page 186.
This is relevant to the father’s credit of a witness but there was no evidence that the father has an alcohol problem. He does not appear to have any alcohol-related convictions.
Mr E, the mother’s psychologist, saw the father for a brief period a few years ago when he had to see a psychologist as part of his parole conditions. In the report he prepared for the mother he referred to this and asserted that the father might have Cluster B personality traits. He did not explain what this meant.
In cross-examination Mr E agreed that he was a psychologist and was not authorised to diagnose mental health issues and in any event there was no evidence that he had performed a rigorous examination to arrive at this conclusion and I can place no weight on it.
The most significant concerns raised about the father were:
(i)His criminal record and whether he might reoffend and become unavailable to care for [X];
(ii)Whether his relationship with Ms C might end and the implications for [X] if this occurred.
The father criminal record runs from 1995 to 2017. His first convictions were for break enter and steal, receiving and unlawful entry in …1995 when he was 13. He has been convicted of offences of dishonesty (break enter and steal, larceny, receiving and the like), property offences (malicious damage, destroy or damage property and the like) offences of violence (assault, assault occasioning actual bodily harm, maliciously inflicting grievous bodily harm, stalk intimidate and using a carriage service to menace and harass) driving offences, bicycle riding offences, offences involving resistance to law enforcement officers (assault police, resist arrest, breach of bail, escape lawful custody) offences in relation to substances (possession of restricted substances and supply a prohibited drug) and firearms offences.
His last convictions were for supplying a prohibited drug (methamphetamine) in May 2016. On … 2017 he was sentenced to 8 months imprisonment. He was released from gaol on parole in 2017.
The father has not been convicted of any offences committed since … 2016. He was stopped in a motor vehicle on 11 July 2018 and it was alleged that he had been driving; the father did not then have a driver’s licence. He was not convicted of this offence and maintained that he was not driving and I cannot be satisfied that he was.
The father has been the victim of assaults and it is difficult to avoid the conclusion that this has been connected with his offending and having associates who live in the same world. In 2012 his two brothers staged a home invasion and assaulted him with a metal bar. In January 2013 he presented to Hospital H with a stab wound to his stomach.
The father’s evidence was that since his last offending in 2016 he had been in a stable relationship with Ms C and had turned his life around. He said that he had done anger management courses while incarcerated which helped him manage his anger better. He said that he had no intention of reverting back to a life of crime, violence and drugs.
I accept that the father does not wish to re-offend or go back to jail but it is too soon to be sure that he will not find himself caught up in offending again or suffer some other incident such as the stabbing connected with his association with people who have involvement in a life of crime.
Ms C is an important part of [X]’s life.
She has historically had her own issues. She has used cocaine and amphetamine and had an admission to a mental health facility in 2005 and attended an addiction treatment center, a dual diagnosis centre in 2007. She was diagnosed with Bi-Polar disorder and prescribed medication.
In 2006 Ms C was charged with embezzlement which took the form of stealing from her employer.
Ms C said that she ceased drug use in 2007 and ceased taking medication for her mental health in 2009 and had had no subsequent mental health issues since ceasing illicit drug use.
There was nothing in any of the evidence presented to the court to suggest that Ms C had any recent issues. She has had no involvement with the police since 2006, DCJ have not investigated the care of her children and I accept her assertion that absent maternity leave she has maintained her employment since 2007. She was asked to do a hair test after the proceedings commenced and the result dated 24 September 2018 was clear for all illicit drugs.
Ms C has led a blameless life and been drug free for more than 10 years and she was impressive in the witness box. I accept that she is well able to provide loving care for [X].
The mother’s solicitor did not challenge this. The concern he raised was that given the father’s relationship history there must be considerable concern about whether his relationship with Ms C would last.
The father does not have a history of being in long term stable relationships. Before he met Ms C he had three children from three different relationships: [I] born in 2009, [X] born in 2012 and [J] born in 2014.
The father dismissed any suggestion that his relationship with Ms C would end after a short period just as all his other relationships in the last 10 years had done. He praised her maturity.[23]
[23] This is my spin on it. The father’s words were “I just feel I have a woman this time, not a little girl.”
I cannot say for sure that this relationship will last. However Ms C is sensible and grounded and does not behave in a histrionic and aggressive fashion like the mother so I can say that there is no obvious reason why this relationship should not last for some time.
The family report writer recognised that there was a possibility that the father might relapse into criminality or that his relationship with Ms C might end and emphasised the deleterious impact this would have on [X]. She said as follows:
….the documentation also contains an extremely concerning history of criminal activity and violent crime in the father and if [X] continues to live with the father, efforts ought to be made to ensure FACS continues to monitor the situation and ensure the father’s greatly improved behaviour over the past few years continues. A concerning scenario is the possibility of a fracture in the relationship between Ms C and the father. Ms C appears to have been a key stabilising influence on the father and he seems to have made many positive changes since they began their relationship. Should this relationship fail, and the father return to his previous criminal behaviour this could have disastrous results for [X].[24]
[24] Family Report paragraph 98
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.
Going into this as a separate consideration will not assist me.
I must consider if the child is an Aboriginal child the child’s right to enjoy her culture (including her right to enjoy that culture with other people who share that culture) and the likely impact any parenting order made under this Part will have on that right.
The father is Aboriginal. He grew up on the far north coast of New South Wales and has a connection with the AA and BB people. [X] is an Aboriginal child.
The father is proud of his heritage and said that he had a connection with young aboriginal children and did ceremonies and cultural awareness talks. [X] is identified as an Aboriginal child at school.
The father asserted that the mother had never encouraged [X]’s aboriginal heritage or connection but it was not suggested that she disrespected her identity. [X]’s aboriginality was not raised by any Counsel as a relevant issue in terms of determining appropriate parenting arrangements.
I must consider any family violence involving the child or a member of the child’s family.
This matter is replete with incidents of family violence and I have already discussed and made findings about some of them.
Mr B was violent to the mother in January 2018 and July 2018.
The mother has been violent to both the father and Ms C in the form of repeated derogatory taunts and making threats and she has a conviction for using a carriage service to menace and harass.
The mother assaulted Ms C on 8 February 2018.
The issue which requires further consideration is the allegations by the mother and father about violence during their relationship.
In her affidavit the mother alleged that the father had a short temper, would fly into rages, scream at her and punch her and that she would often have bruising on her face and body.
She attached to her affidavit a letter written by Mr E on 4 December 2018 in which he stated that the mother had been referred to him on 17 March 2015 after leaving a domestic violence relationship. He reported the mother as saying that she had been:
…verbally, physically and emotionally abused on a number of occasions face to face and also over the phone and through text and email after separation.[25]
[25] Mother’s trial affidavit annexure APW4
Mr E said that in his clinical opinion the mother was suffering from anxiety, depression and infrequent panic attacks as a result of the abuse she had gone through.
The mother talked to the family report writer about violence and the family report writer said as follows:
The mother alleges that family violence has occurred historically in the relationship and that she was the victim of such violence perpetrated upon her by the father. She reported that he would punch walls and throw items at the wall. The mother reported that before [X] was born that she was in hospital with injuries from the father punching and pulling her hair but that she had told the hospital she had a conflict with her neighbour. She reported that arguments would arise from her accusations of the father cheating on her and then ‘he’d have enough and then smash property or punch me’. The mother also alleged that the father threatened to shoot her and [X].[26]
[26] Family Report paragraph 50
The material in the tender bundle reveals that police were called on a number of occasions in regard to issues between the mother and father.
COPS records contain allegations about the mother being pushed, hit in the face and threatened with knife. On 28 March 2011 the mother presented to hospital with bruising on nose. At some point which is unclear to me the father was charged with assaulting the mother but the charge was dismissed.
A report to police on 1 May 2013 contains an allegation that the mother being grabbed and pushed and there is a report of a police call-out in March 2014 when the mother refused to talk to police after they attended.
The father denied that he had been violent to the mother. He said that all the assault convictions in his record related to assaults on men and that as a result of exposure to his father being violent to his mother he had “struggled to maintain appropriate responses around aggressive men.”[27]
[27] Father’s affidavit paragraph 107
In his affidavit the father did not make any allegations about the mother being violent to him but the report writer said this:
The father alleged that it is the mother who has been violent in the relationship and that he had been ‘punched with keys through a window’, ‘run off the road while [X] was in the car’, punched and threatened that he will have his throat cut. The father stated that he has had minor injuries including bruises and lacerations from the mother’s actions.[28]
[28] Family Report paragraph 65
It is impossible for me to be sure where the truth lies about the allegations of family violence between the parties during their relationship.
I cannot be satisfied on the balance of probabilities that the mother behaved as the father alleged when these allegations were not tested at trial but I feel considerable unease that she may have done so. She has a propensity to behave very aggressively; she assaulted Ms C and had a physical fight with her sister.
This case does not turn however on whether the mother perpetrated family violence on the father during the relationship.
The allegations about the father have more relevance for the decision I have to make. The father is in a new relationship and if people have been violent in one relationship there is always a concern that they may behave violently in another.
The dismissal of the assault charge against the father and the mother’s failure to talk to police when they arrived after being called out is not inconsistent with family violence having occurred.
The father has a number of convictions for assault. He said that they were all for assaults on males and this may be true but they suggest that he has a capacity to perpetrate violence.
I feel unease about whether the father might have been violent to the mother on occasions but on the state of the evidence I cannot be satisfied on the balance of probabilities that he perpetrated family violence.
Perhaps more importantly there is nothing in the COPS records produced on subpoena which suggests that violence to women has been a problem for him for in the last few years. He has presented to everyone in authority who has had dealings with him since these proceedings commenced (the police who have called at his home, the contact centre workers, the report writer and the court) as calm and well-mannered and there is no basis for finding that there is violence in his relationship with Ms C.
I cannot be satisfied that [X] is at unacceptable risk of exposure to family violence in the father’s care or to poor role modelling because of his attitude to women.
I must consider if a family violence order which applies, or has applied, to the child or a member of the child family--any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
Numerous family violence orders have been made involving the parties to these proceedings.
A provisional ADVO appears to have been made for the mother’s protection from her sister Ms M in June 2017.[29]
[29] Tender Bundle page 149
An ADVO was made for the mother’s protection from Mr B in January 2018 and again in July 2018. The second ADVO against Mr B was made final on 6 September 2018 and is in place until 6 September 2020.
An ADVO was made for Ms C’s protection from the mother in February 2018.
The most important thing about all of these ADVO’s is the facts which led to them being made and I have already discussed that issue.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of her parents.
Discussing this as a separate consideration will not help me.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
That is always preferable and an order that the child live with the father and spend time with the mother is the order least likely to lead to further proceedings. However further proceedings could occur if the father again becomes involved with the criminal justice system.
If I make an order for no time further proceedings may occur because the mother forms the view that she can demonstrate that she has dealt with her problems and seeks a different parenting order.
I must consider any other fact or circumstance which the court thinks is relevant.
During cross-examination of both the family report writer and Mr E the mother’s solicitor raised the issue of the impact on the mother of an order that [X] spend no time with her.
This is not a relevant consideration. The objects and principals in s.60B of the Family Law Act refer to children’s rights: their right to know and be cared for by both their parents, their right to be kept safe and their right to have a relationship with extended family. They do not refer to parents rights.
The impact of orders on a parent can be a relevant if it is likely to impact on their parenting capacity.[30] In this case however an order for no time would not impact on the mother’s parenting capacity as she would not be seeing [X].
[30] Sedgley & Sedgley (1995) FLC 92-263
I accept that the mother will take an order for no time very hard and perceive it as unjust and unwarranted but I cannot make an order for [X] to spend time with the mother to keep the mother happy.
I must now return to the primary considerations and the first is the benefit to the child of having a meaningful relationship with each of her parents.
There is powerful reason to be concerned that if [X] lived with the mother she might not comply with orders for [X] to spend time with the father and might do everything in her power to undermine the child’s relationship with him.
The father complained that after the orders were made in August 2018 the mother actively sought to turn [X] against him and I accept the father’s evidence that the mother encouraged [X] to say on the phone that she did not want to see him, subjected him to verbal abuse when he tried to collect her and failed to comply with court orders for [X] to spend time with him.
The mother kept up a barrage of abusive emails until not long before the trial. They included the following:
(August 27 2019) Aren’t you embarrassed showing ur face at our daughters school after sleeping and letting multiple women from the school (some mothers of other children at the school) suck your dick? …..
(November 6 2019) Just been up to the school And had an interview with her class teacher and I ran into [X] and u r in big shit ur going to jail the big of u…u and ya slag gf Ms C
(November 6 2019) I believe [X] to be at high risk of sexual harm from u and Ms C. (followed by two other emails to the same effect)
The mother frankly stated in the witness box that she would prefer [X] not to have a relationship with her father.
[X]’s relationship with her father is strong and the mother might have some difficulty turning her against the father but if the mother resisted complying with spend time orders it would cause great stress and difficulty for the child and would lead to further court proceedings.
The father has not sought to undermine the mother’s relationship with [X]. The mother did not produce a single email or text message in which the father had abused or denigrated her or threatened that he would take her daughter from her. He was very calm during cross-examination and showed no antipathy for the mother.
The mother was highly critical of the father for not agreeing to her seeing [X] after the contact centre refused to provide a service. However I am satisfied that his refusal to do so was arose from valid concerns about [X]’s safety and not from a desire to alienate the child from her mother and that his proposal that [X] spend no time with the mother arises from a concern about [X]’s safety.
[X] will have no relationship with her mother if a no time order is made and the mother’s solicitor submitted that this would be a devastating outcome for [X] which could have long term detrimental affects for her and he relied on Mr E’s evidence to this effect.
The family report writer agreed that the inability to have a relationship with one of her parents can have a negative impact on a child. However pursuant to s. 60CC (2A) I must prioritise the need to protect the child from harm over the benefit of her having a meaningful relationship with each of her parents and [X] would be at unacceptable risk of harm if she spent unsupervised time with the mother.
The possibility of the mother forming a relationship with another person such as Mr B and the child being exposed to family violence as a result cannot be ruled out.
The mother has perpetrated family violence in the form of assaulting Ms C and threatening the father and the child was exposed to the assault.
The mother’s behaviour at the contact centre and at the family report interviews frightened [X] and exposure to the mother behaving in that way has the capacity to cause [X] serious psychological harm.
There is nothing in the evidence to inspire confidence that the mother has changed or developed insight such that [X] might not be exposed to family violence or dysregulated behaviour in her care in the future and I cannot put it better than the family report writer who said as follows:
A factor identified which may impinge on the mother’s ability to parent is her lack of insight into the impact of her behaviour on [X]. [X] was visibly distressed by her mother’s outburst at the Family Consultant’s office and the mother appeared oblivious until it was explained at length by the Family Consultant. The mother did not appear to believe her past behaviour was inappropriate towards the stepmother, despite an AVO being enacted. Her observed behaviour at the Family Assessment, which was presumably curtailed by the gravity of the process underway, was aggressive and intimidating and lacked any awareness of [X]’s needs.
A further factor identified that would impinge on the mother’s capacity to care for the [X] is her lack of protectiveness of [X]. It appears that [X] has witnessed her mother behaving aggressively not only to the father and stepmother, but also to the maternal aunt who reportedly intervened to protect [X] from being assaulted by her mother and a physical altercation ensued. The mother has also reportedly failed to keep [X] away from the maternal grandmother despite allegations of sexual abuse and reportedly left [X] in her care following the allegation. Similarly, the mother reportedly continued a relationship with Mr B despite his violence in the home until he was charged and incarcerated. It is doubtful whether the mother has the insight to be aware of [X]’s need for protection and to live a life free of both experiencing and witnessing violence and aggression.[31]
[31] Family Report paragraph
I cannot on the state of the evidence make a finding that the maternal grandmother abused [X] but aside from that the evidence before me provides strong foundation for the above opinions.
The mother is in denial about her behaviour and the therapy Mr E is providing is not assisting her to address her issues with aggression and dysregulated behaviour, indeed Mr E is encouraging the mother to believe that she is a victim of “the system”.
There is nothing in the evidence before me to suggest that the risk of the mother behaving in this way in the future has diminished one jot.
[X] would also be at risk of psychological harm from the mother questioning her about whether she is being abused or sexually abused by others. It is clear from the material that the mother cannot see anything wrong with this and it is inevitable that it would happen again if [X] spent unsupervised time with her mother.
I also have some concerns that the mother might harm [X], because there is some concerning material to suggest that she may have treated her harshly in the past.
I cannot make a finding on the balance of probabilities that the mother deliberately injured [X]’s arm at the sporting venue or even that she angrily and recklessly did so. I cannot exclude the possibility that her sister was covering her own tail when she said this to the police in 2017.
I cannot make a concluded finding that the mother caused bruises to [X] and smacked her and that [X] was sometimes afraid of her based on the complaint the school made to DCJ in 2018. The school might have come to the wrong conclusion.
I cannot be satisfied on the balance of probabilities that the mother has harmed or harshly physically disciplined [X] but in light of the findings I have made about her aggressive, violent and dysregulated behaviour and in light of my unease arising from such things as [X] speaking to the family report writer about wanting to get on a high cupboard I cannot exclude that possibility either and this adds to my concern that the child would be at unacceptable risk of harm in the mother’s unsupervised care.
When the family report was prepared time at the contact centre had not commenced and the family report writer did not want to rule out the possibility of the mother spending any time with [X]. She said as follows:
While it is may not be advisable that all contact be severed with the mother as she is the primary attachment figure, until the mother has shown consistently that she is able to behave appropriately towards [X] in a supervised environment, the potential risk of psychological harm is too great to allow [X] to enter the mother’s care without supervision.[32]
[32] Family Report paragraph 97
Unfortunately since the report was released the mother has shown no sign that she is able to consistently behave appropriately towards [X] in a supervised environment and has shown no signs, even embryonic signs, of accepting that she has issues with aggression and dysregulated behaviour and her mental health and is willing to take steps to address those issues.
The incidents at the contact centre on 14 & 28 June 2019 demonstrate that supervised time would not protect [X] from the mother questioning her about whether anything had happened to her or whether she was being looked after and exposure to either would cause her psychological harm.
The mother’s behaviour at the contact centre on 28 June 2019 was out of control and there is nothing to suggest that the risk of her behaving in that way has passed.
The mother may at some later point consider that she can demonstrate that she has made changes and seek to persuade the court to make a different order but sad though it is for the court to have to make an order which deprives a child of any chance of a relationship with a parent, [X]’s safety and psychological well-being has to come first and I am simply unable to make an order that [X] spend time with the mother, even supervised time.
Conclusion
The mother’s case was that the father was a criminal and that there was a high risk that he would get into trouble with the law again and would be unable to look after [X]. Her solicitor also submitted that I should be concerned that the father’s relationship with Ms C might end although whether the mother would consider that a concern is another question when she believes that Ms C is a paedophile.
The mother’s solicitor asked me to place weight on Mr E’s opinion that neither parent should have full custody of [X] and that a shared parenting plan should be put into place.
I cannot place weight on that and I could not possibly make an order that [X] live with the mother or that there be any form of shared care.
[X] had a tumultuous time during 2018, not just because of the incident in mid-2018 when the father retained her and she was shortly afterwards returned to the mother but also because she witnessed the mother being seriously assaulted by Mr B, the mother and Ms C having a physical altercation in the street and the mother not complying with orders for her to spend time with her father and becoming physically abusive when the father tried to see her.
[X] is frightened of her mother and wants to live with her father and she is safely placed with him. She is attending school regularly and she has slotted into the father’s household with her step-siblings and infant brother.
There is no evidence that there is family violence in the father’s relationship with Ms C or that Ms C suffers from any debilitating mental health issues.
[X] is able to live a normal life with the father without her involvement in school excursions and other school activities and social occasions being interfered with because of the mother’s hypersensitivity about the risk of sexual abuse. She is also not exposed to the mother’s mood swings, violent acting out and to her vituperation about the father and her inability to support [X] having a relationship with him.
There is no foundation for a suggestion that if [X] was returned to the mother’s care or was placed in a shared care arrangement that this would result in the mother’s behaviour and mental health issues settling. These issues were apparent for the mother long before the court made an order on 21 December 2018 for [X] to live with the father.
It will be sad and difficult for [X] if the father’s relationship with Ms C ends although the father might still be able to manage her care. It will be tragic for her if her father returns to a life of crime because there is no other safe family placement for [X]. However neither of those things justify making an order that [X] live with the mother or live in a shared care arrangement. I agree with the submission by Counsel for the Independent Children’s Lawyer that this case turns on the need to protect [X] from immediate risk of harm.
I acknowledge that [X] lived with her mother from her birth until January 2019 and that for most of that period her mother was there for her and her father frequently unavailable. However that does not justify placing her at risk of harm by returning her to the mother’s care or making a shared care order.
In closing submissions the mother’s solicitor asked that at the very least the court make an order for the child to spend time with the mother. For reasons outlined earlier I am simply unable to do so. The mother is not addressing her issues and [X] would be at unacceptable risk of harm if she spent even supervised time with the mother.
Parental responsibility
Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the child’s best interests that the parents have equal shared parental responsibility for her absent a finding that one of them has engaged in abuse of the child or family violence.
The mother assaulted Ms C in February 2018 and she has a conviction for a family violence offence (using a carriage service to menace or harass) and the presumption does not apply.
The court can still make an order for equal shared parental responsibility if the presumption does not apply but the gulf between these parties is so wide and the antipathy exhibited by the mother toward the father so great that it would be impossible for them to come to a joint decision about [X] and disastrous for them to attempt to do so.
Decisions will need to be made about [X], for example about ongoing counselling and whether she continues at her current school. The only possible order in this case is an order that one parent has sole parental responsibility for her and as [X] will be living with the father I intend to order that he has sole parental responsibility for the child.
Passports and International Travel
The father sought an order that he be able to obtain a passport for the child and travel internationally with her without the need to obtain the mother’s consent. This was not the subject of any cross-examination or submissions at trial but the mother was on notice of it because it is contained in his amended response filed on 27 November 2019.
It is an order I frequently make following a final hearing even if there is no international travel on the horizon because many Australian’s like to go on holidays, to go on a cruise or go to places such as Fiji, Bali and New Zealand and it clogs the court lists and causes unnecessary expense for parties if they later have to make an application for a passport or for permission to travel because the other party will not agree to it.
The level of the mother’s hostility to the father is such that it is difficult to foresee her easily agreeing to a request for a passport to issue.
The father is an Australian with aboriginal heritage and there is no suggestion anywhere in the material that he might relocate overseas and I am satisfied that it is appropriate to make the order about the issue of a passport and international travel sought by the father.
I certify that the preceding three hundred and fifteen (315) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 20 December 2019
Nan B.
0