WILSON & WILSON

[2015] FamCA 490

FAMILY COURT OF AUSTRALIA

WILSON & WILSON [2015] FamCA 490

FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time – parental responsibility – best interests – mother’s application to have the child live with her – where orders have been made for the mother to have time with the child on a supervised basis – where the mother has refused to spend time with the child on a supervised basis – where the mother alleges sexual abuse by the father of the child – no evidence of sexual abuse by the father – where the child has disclosed physical abuse by the mother – where the child has been assessed as being at moderate risk of self-harm – need to protect the child from the effects of continuing parental conflict – final orders made that the child live with father and spend no time with the mother – final orders that the father has sole parental responsibility for the child

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

B & B (1993) FLC 92-357
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

APPLICANT: Ms Wilson

RESPONDENT: Mr Wilson

INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

FILE NUMBER: MLC 7512 of 2007

DATE DELIVERED: 26 June 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 18 - 20 February & 19 March 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lovering

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

THE COURT ORDERS

1. That all previous orders relating to the child B born 7 July 2001 be discharged.

2. That the father have sole parental responsibility for the child.

3. That the child live with the father.

4. That the child spend no time with the mother.

5. That the father do all such acts and things and sign all documents as may be required to ensure that the child continue to attend upon the Department of Child & Adolescent Psychiatry at Suburb C, D Hospital, Melbourne (“Suburb C”) for such period and at times as directed by the child’s treating doctors at Suburb C. 

6. That the father abide by all lawful directions of the child’s mental health workers, psychologist and psychiatrist.

7. That the father and the mother be and are hereby restrained from removing the child from the Commonwealth of Australia. 

8. That the mother by herself, her servants or agents be and is hereby restrained from removing or attempting to remove the child from the father’s care, whether the child is with him, at school, during extra-curricular activities, with friends or relatives or in any other place.

9. That the mother and the father do all acts and things as may be required to keep the other informed as to their current residential address and telephone numbers.

10. That the evidence of Ms E, Family Consultant, given on 19 March 2015 be transcribed and the ICL be permitted to provide a copy of that evidence to the child’s treating doctors at Suburb C or any other counsellor or treating practitioner that the child may see from time to time.

11. That the father do all such acts and things as may be required to authorise the child’s treating medical practitioners at Suburb C or any other counsellor attended by the child from time to time to provide to the mother with reports or information in relation to the child’s progress.

12. That the father authorise any school attended by the child to supply school reports and school photograph order forms to the mother with the mother to meet any expense relating to the provision of such school reports or photographs.

13. That the father do all such acts and things as may be required to authorise P Group and Suburb C to exchange case management information in respect of the child.

14. That the appointment of the Independent Children’s Lawyer be discharged.

15. That all extant applications be otherwise dismissed and the case removed from the list of cases awaiting finalisation.

16. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7512 of 2007

Ms Wilson

Applicant

And

Mr Wilson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. B (“the child”) is currently aged 13 years.  Since 2007, when she was six years old, the child’s parents have been in conflict as to her care arrangements.  

2. The consequences for the child of the continuing exposure to her parents’ dispute have been devastating; the child has recently been assessed by mental health workers at the D Hospital as being at moderate risk of suicide.  Given that circumstance, it is unfortunate that the child’s parents have been unable to concentrate their efforts on the child’s wellbeing and have instead pursued the more destructive course of litigation in this Court.

3. In the current proceedings, which were commenced in May 2013, the father alleges that the child has suffered physical abuse at the hands of the mother.  The mother denies those allegations.  As a result of disclosures made by the child with respect to her mother’s behaviour, the child has lived with the father on an interim basis since May 2013.

4. In June 2013 the mother alleged that the child has been sexually abused by her father.  The father denies those allegations.  Those allegations were investigated by the Sexual Offences and Child Abuse Investigation Team (“SOCIT”).  The allegations were not substantiated.  Nonetheless, throughout these proceedings, the mother maintained that the child was at risk in the father’s care.

5. The mother and the father each seek orders that the child live with them. 

6. The matter was originally listed for a three day hearing commencing on 18 February 2015. However, due to issues which arose on the second day of hearing, to which I will later refer, the matter was adjourned part-heard to 19 March 2015 and concluded that day.

The Parties

1. The applicant mother is aged 41 and is currently employed. She was born in Country F and retains ties to her country of birth through her family.

2. The respondent father is aged 42 and is currently unemployed; he receives WorkCover benefits and partial Centrelink benefits as a result of a workplace injury. He was previously employed as a tradesman but has not worked since 2012 due to his injury.

3. The parties commenced cohabitation in 1999 and were married in 2000. Although there were several periods of separation throughout the course of their marriage, the final separation occurred in 2004 when the father left the former marital home. The parties were divorced in August 2007.

4. It is common ground between the parties that the marriage was tumultuous from its inception and that it was characterised by frequent arguments. Both parties allege they were subjected to physical and verbal abuse by the other during the course of the marriage.

5. B is the only child of the marriage.  She was born in 2001 and is currently aged 13.  She is in year 8 at G School, Suburb H. By all accounts, the child is an intelligent girl who consistently performs well at school.

Material Relied Upon and Orders Sought

1. The mother relied upon the following material:-

   ·Further Amended Initiating Application filed 6 August 2014;

   ·Affidavit of the mother filed 14 November 2014; and

   ·Affidavit of the mother filed 10 February 2015.

2. The mother sought orders in the following terms:-

   ·That the parties have equal shared parental responsibility for the child;

   ·That the child live with the mother;

   ·That the child spend time and communicate with the father as this Honourable Court deems fit;

   ·That the father be restrained by injunction from discussing the current or past Family Law related proceedings with or in the presence or hearing of the child; and

   ·That the father be restrained from abusing, denigrating, belittling or otherwise speaking negatively about the mother or any members of her family.

3. The father relied upon the following material:-

   ·Amended Response to Initiating Application filed 7 August 2013;

   ·Affidavit of the father filed 8 December 2014;

   ·Affidavit of the father filed 4 February 2015; and

   ·Affidavit of Ms I filed 4 February 2015.

4. On the first day of the hearing, the father indicated that he no longer relied upon his Amended Response to Initiating Application and that he sought orders in the terms of the Independent Children’s Lawyer’s (“the ICL”) Case Outline filed 9 February 2015.  

5. At the commencement of the hearing the ICL sought orders in the following terms:-

   ·That the father have sole parental responsibility for the child;

   ·That the child live with the father;

   ·That the father do all acts and things and sign all documents to ensure that the child continues to attend upon the Department of Child and Adolescent Psychiatry at Suburb C (D Hospital);

   ·That the father abide by all lawful directions of the child’s mental health workers, psychologist and psychiatrist AND IT IS REQUESTED that at the conclusion of the child’s treatment, her treating psychiatrist prepare a report detailing and advising whether time-spent periods with the child and the mother should commence and if so whether any conditions should be placed on such time spent periods;

   ·That the father be responsible for the payment of the report referred to above and provide a copy of the same to the mother and K Contact Centre;

   ·That the child continue to be treated by Ms J, psychologist, who will also be provided with a copy of the report from the D Hospital;

   ·That the parties do all things necessary to apply for supervised time at K Contact Centre;

   ·That the parties be restrained from relocating the child to any state or territory in the Commonwealth of Australia;

   ·That the mother be and is hereby restrained by injunction from removing or attempting to remove the child from the care of the father whether the child is with him, at school, during extra-curricular activities, with friends or relatives or any other place;

   ·That the parties keep each other informed as to their current residential addresses and maintain and share emergency telephone numbers; and

   ·That in the event that the mother seeks to issue a spend-time application in the future, such application not be issued without the leave of a Judge of the Court and be accompanied by a psychiatric assessment of the mother that demonstrates significant and substantial change of circumstances and the mother’s attitude towards the child and parenting in general.

6. The ICL relied upon the following material:

   ·The ICL’s Case Outline filed 9 February 2015;

   ·Family Report of Dr L dated 15 November 2008;

   ·Family Report of Ms M dated 24 May 2012;

   ·Section 11F Memorandum of Ms N dated 24 May 2013;

   ·Notice of Child Abuse or Risk of Family Violence filed by the father on 28 May 2013; 

   ·Affidavit of Dr O filed 12 June 2014;

   ·Family Report of Ms E dated 15 September 2014; and

   ·Supplementary Family Report of Ms E dated 20 January 2015.

7. At the conclusion of the evidence and during closing submissions, counsel for the ICL indicated that the orders sought on behalf of the ICL had changed.  Counsel for the ICL tendered a Minute of Proposed Order (Exhibit ICL 10) which sought orders in the following terms:

   ·That all previous parenting orders be discharged;

   ·That the father have sole parental responsibility for the child;

   ·That the child live with the father;

   ·That the child spend no time with the mother;

   ·That the father be prohibited by injunction from moving the residence of the child from outside of the catchment region of the Department of Child and Adolescent Psychiatry at the D Hospital (“the Suburb C unit”) or any area that would preclude the child to continue her treatment at the Suburb C unit;

   ·That the child continue to attend upon the Suburb C unit and the father ensure that the child attends as directed by the Suburb C unit;

   ·That the father and the mother follow all lawful directions of the Suburb C unit and P Group;

   ·That the evidence of Ms E given on 19 March 2015 be transcribed and the ICL be permitted to provide a copy of such evidence to the D Hospital or any other counsellor or treating practitioner which the child may see from time-to-time;

   ·That the mother be at liberty to be provided from either the father or through the D Hospital with reports in relation to the child’s progress;

   ·That the order for the ICL be discharged; and

   ·That any further applications are to be listed at first instance before the Honourable Justice Johns.

8. During his closing submissions the father confirmed that he sought orders in the terms of Exhibit ICL10, save that he did not agree to any restraint upon his ability to relocate out of the catchment area for the Suburb C unit.

Background

1. The father maintains that the mother has not supported his time with the child since the parties’ separation in 2004.  The child was aged 2 ½ years at the time of separation.

2. Following their separation, there were extended periods when the father did not see or spend time with the child.  The mother alleged that the father absented himself from the child’s life and did not seek to spend time with her. 

3. The father was cross-examined by counsel for the ICL as to his efforts to see the child following the parties’ separation.  It was his evidence that in the months following the separation, his time with the child was sporadic.  He stated that at that time the mother made repeated requests for him to return to the home.  The father stated that he refused those requests and the mother’s response to those refusals was to tell him he would never see the child again. 

4. The father stated he sought legal advice in November/December 2004 and that it was arranged that he would see the child for four hours each Saturday.  However, that arrangement occurred on only two occasions. 

5. In May/June 2005 the mother moved with the child to an address unknown to the father.  The father’s evidence was that he was not informed of the move and did not know where the mother and the child had gone. 

6. Notwithstanding the apparent disappearance of the mother and the child, the father did not attend upon the police or take any active steps to find them.  He did not attend upon a lawyer again until late 2006.  The child spent no time with the father for approximately one year during that period.

7. The father conceded that he did not do anything to pursue a relationship with the child during that period.  He stated that he was “lost”.

8. The father’s evidence with respect to the history of events following the parties’ separation was unimpressive; the father was vague as to significant events in the aftermath of the separation.  He offered his work commitments as an excuse for his inaction following the mother’s disappearance.  What is clear from his evidence is that maintaining his relationship with the child was not his priority at that time in his life.  I am satisfied that at that time, the father’s attitude to his parental responsibilities was poor.

9. It was not until October 2007 that proceedings were first commenced on behalf of the father.  He filed an application in the Federal Magistrates’ Court (as it then was) seeking orders that he spend time and communicate with the child for specified periods.  The mother filed a response to that application in which she sought orders for sole parental responsibility and that the father spend such time with the child as the Court deems fit. 

10. Final orders were made in respect of the parties’ competing applications by Federal Magistrate Riethmuller (as he then was) on 16 December 2008.  Those orders provide inter alia that:-

    ·B live with the mother;

    ·The father and the mother have shared parental responsibility for the child;

    ·That the father spend time and communicate with the child for specified times, including:-

    (A)Each alternate week from 5.30 pm Friday to 5.30 pm Sunday;

    (B)For specified times during school holiday periods; and

    (C)By telephone each Tuesday night between 6.00 pm to 6.30 pm.

11. Notwithstanding those orders, the parties’ issues in relation to the care arrangements for the child continued. 

12. A Contravention Application was filed by the father in August 2009.  That application was finalised in October 2009.

13. Less than a year later, in July 2010, the father filed an Initiating Application seeking orders with respect to child support.  Those proceedings were concluded in October 2010.

14. In December 2011 the mother filed an Initiating Application wherein she sought permission to obtain a passport for the child and to travel with her overseas.  The father opposed that application.  Those applications were finalised in July 2012.

15. Less than a year later, in May 2013 the mother and the father filed their current applications in the Court.  The circumstances which led to the filing of those applications are as follows. 

16. In May 2013 the mother travelled to Country F in order to visit her ailing mother.  Prior to her departure for Country F, the mother arranged for the child to be cared for by the paternal grandparents during her absence.  The paternal grandparents live in Q Town.  The mother enrolled the child to attend at a school in Q Town during her period of absence from Australia.

17. The father alleges that he was not informed of the mother’s travel arrangements prior to her departure.  Indeed it is his position that he was only informed of those arrangements by the paternal grandparents after the mother had travelled to Country F.

18. Whilst in the care of her paternal grandparents, it is alleged that the child made disclosures to her paternal grandmother that the mother had been physically chastising her, hitting her and causing bruising to her legs.

19. Upon learning of the child’s disclosures, the father arranged for her to commence living with him.  He collected the child from the home of his parents and enrolled her at school at G School, Suburb H where she continues to attend.

20. The allegations that the mother had hit the child were reported to the Department of Human Services (“DHS”) and the police. 

21. Following the father’s actions, the mother returned to Australia from Country F.  The mother filed an application in the Federal Circuit Court on 20 May 2013 seeking orders that the child be returned to her care. 

22. On 22 May 2013 Judge Connolly ordered the appointment of an Independent Children’s Lawyer (the ICL).

23. The father filed his response on 28 May 2013.  That application sought orders that he have sole parental responsibility for the child and that the child live with him.  Further, he sought that the mother be psychiatrically assessed. 

1. On 23 May 2013, pursuant to the orders of Judge Connolly, the parties and the child attended upon Mr N, Family Consultant, for the purposes of the preparation of a report pursuant to s 11F of the Family Law Act1975 (Cth) (“the Act”). Mr N’s report dated 24 May 2013 was tendered by the ICL (Exhibit ICL 5).

2. Mr N interviewed the parties and the child for the purposes of his report.  Mr N reported that the child, who was then aged almost 12 years, presented as “a quiet and thoughtful girl who was nevertheless able to clearly outline the issues and concerns that have been prevalent in her life over the past year or so”. 

3. During interview with Mr N, the child disclosed a range of concerns with respect to the mother’s conduct towards her.  Those disclosures included:-

   ·That her mother has hit her using a plastic or wooden spoon or her hand;

   ·That as a result of her mother hitting her, the child has sustained either some bruising or red marks to the parts of her body that had been hit;

   ·That her mother most recently hit her “three or four weeks ago” and prior to then “I think one week before”.  She stated that her mother tended to hit her more with a wooden spoon and generally two to three times per month; and

   ·That the child was scared of her mother and has wanted to stay with her father. 

4. In the context of that interview, Mr N reports that the child stated to him that she wanted to remain living with her father for the time being and that she wanted the hitting to cease. 

5. Mr N reports that the mother took issue with the disclosures made by the child stating to Mr N that she has never physically disciplined the child.  Further, the mother alleged that she has concerns for the child in the father’s care as a result of a history of physical aggression by him towards her and also a history of him using illicit substances and consuming alcohol to excess. 

6. Mr N reports that the child was reluctant to spend any time with the mother during the interview process. 

7. Mr N stated in the concluding paragraphs of his report that it was his view that on an interim basis it would be more appropriate for the child to remain in the primary care of the father pending clarification of the allegations as to the mother physically disciplining the child.

8. Mr N also expressed concern as to the mother’s position with respect to the child’s disclosures, stating:-

   It is of concern to the family consultant that [the mother] so adamantly denies the allegations made by her daughter about her.  In doing so, [the mother] is effectively calling her daughter a ‘liar’; something that will have important adverse implications for the quality of the ongoing relationship between [the child] and her mother if [the mother] chooses to maintain her stance on the allegations.  Given her denial of the allegations, the family consultant would have significant reservations about [the mother] being able to assume an appropriate level of responsibility for her behaviour, as well as her being able to address the issues of concern that have been identified in respect of her treatment of her daughter.  Until she is able to do so, there is the potential for the child to be exposed to further risk of inappropriate physical discipline from her mother.

9. In light of the matters contained in Mr N’s 11F Memorandum, Judge Connolly formed the view that the appropriate course was for the proceedings to be transferred to this Court for determination.  The proceedings were transferred to this Court on 31 May 2013. 

10. The outstanding interim applications were listed before Senior Registrar FitzGibbon on 13 August 2013.  That day, orders were made that provided as follows:-

    ·That the mother spend supervised time with the child, such time to be supervised by a neighbour of the mother’s, Ms R;

    ·That the child live with the father;

    ·That the parties complete an application to the K Contact Centre for the purposes of supervised time there in addition to that spent under the supervision of Ms R; and

    ·That both parties  be psychiatrically assessed.

11. Notwithstanding those orders, the mother has spent no time with the child since August 2013. 

12. Further orders were made by Senior Registrar FitzGibbon on 16 December 2013 which provided for the mother to communicate with the child by card or letter, such correspondence to be forwarded to the ICL who was required to vet that communication prior to providing it to the child.  The orders previously made for the mother to spend supervised time with the child were discharged.  The mother was ordered to attend upon LifeWorks for counselling with respect to her anger issues. 

13. The matter first came before me on 23 May 2014.  That day I was informed that the parties had reached a settlement in principle and that they sought that the matter be adjourned for a directions hearing before a Registrar of the Court for the making of final orders.  As a consequence of that request, I listed the matter before a Registrar on 13 June 2014.  Evidently, the parties were unable to finalise the dispute.  As a result the matter was again listed to my docket.

14. On 8 August 2014 I made directions for the listing of the matter for final hearing.  I also made orders by consent that the parties engage in child-inclusive counselling on a privileged basis with P Group, Suburb S.  Ultimately, the final hearing commenced before me on 18 February 2015.

The Hearing

1. The mother and the father were both self-represented at the hearing. Accordingly, I provided all parties with copies of ss 60B, 60CA, 60CB, 60CC, 60DC, and 60CE of the Act.

2. At the commencement of the hearing I enquired as to whether the parties had obtained any legal advice as to how the matter was to proceed.  The mother confirmed that she had attended Suburb T Community Legal Service approximately two weeks prior to the commencement of the hearing and had obtained some advice from that community legal centre.

3. I informed the parties that in accordance with the provisions of the Act I must have regard to the best interests of the child as the paramount consideration. Further, I informed the parties that in determining the child's best interests, I would have regard to the considerations set out in s 60CC of the Act and I particularly drew the parties’ attention to those provisions.

4. I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each of the parties had to cross-examine the witnesses. 

5. Helpfully, Mr Lovering, counsel appearing for the ICL, agreed to cross-examine each of the witnesses first.  That approach meant that Mr Lovering could cover some of the material and that each of the father and the mother in turn could then collect their thoughts as to any remaining questions prior to commencing their cross-examination of witnesses.  As a result, both the mother and the father had the opportunity to experience how questions were to be properly framed prior to commencing cross-examination.

6. During the first two days of the hearing, significant issues emerged in relation to the child’s welfare and the ability of both parties to act in the best interests of the child. During cross-examination by counsel for the ICL, the father gave evidence that the child has engaged in self-harming behaviour.  

7. Further, Ms I, the father’s former de facto partner whose own daughter remains friends with the child, gave evidence supporting the father’s assertion that the child has engaged in self-harming behaviour;  Ms I gave evidence that she had observed a cut on the child’s leg approximately four weeks earlier.  Ms I was an open and honest witness.  She demonstrated affection for the child and concern for her welfare.  I accept her evidence.

8. None of the material on which the father seeks to rely makes reference to the child self-harming. However, during cross-examination the father gave oral evidence that he has been on “suicide watch” for the child for various periods of time since November 2014, when the child first attended upon the D Hospital.  He further asserted that he was instructed by the psychiatrist in the emergency room at the D Hospital to remove knives and medications from his home.

9. As a result of that evidence, I raised with counsel for the ICL my concern that there was no evidence before the Court from the child’s treating doctors as to her current state of health.  Counsel for the ICL submitted that although documents from the D Hospital were subpoenaed and produced to the Court in January 2015, that subpoena was ultimately withdrawn by the ICL due to the advice received by him from the D Hospital that production of those documents could compromise the child’s therapeutic relationship with her doctors.

10. Given the seriousness of the father’s allegations, I was not satisfied that I would have all necessary material to enable me to make orders in the child’s best interests in the absence of evidence from the D Hospital as to her current state of health, her treatment and future prognosis. However, in light of the hospital’s position stated to the ICL, I was also mindful that the production of information by the hospital could damage the therapeutic relationship between the child and her treating doctors.

11. In order to preserve that therapeutic relationship whilst ensuring that all relevant information with respect to the child’s treatment was available to the Court, on the third day of the hearing I made orders that the child’s medical records from the D Hospital be produced under subpoena and released for inspection by Ms E, Family Consultant, for her to read and consider prior to her giving evidence.

12. The father and the ICL supported orders in those terms. The mother opposed the orders for the production of the child’s medical records.  The basis for the mother’s opposition was that the child had attended upon the D Hospital of her own “free will” and that the material related to the child’s “personal life”.   That the mother would oppose the production of the child’s medical records in circumstances where there are grave concerns for her health and well-being is indicative of her limited insight and understanding as to the child’s needs. 

13. The inspection of the medical records by Ms E provided her with the opportunity to raise with the Court any matters contained in those records that she considered relevant to the determination of the issues before the Court whilst ensuring that the child’s therapeutic relationship with her treating medical practitioners was preserved.

14. On the second day of hearing, the ICL also raised the issue of the father’s non-attendance upon Dr O, Psychiatrist, for the purpose of a psychiatric assessment; the failure of the father to attend was in breach of the orders of Senior Registrar FitzGibbon made 13 August 2013. The father’s evidence was that his non-attendance upon Dr O was due to his impecuniosity. He also gave evidence that he did not think it necessary for him to attend upon Dr O.

15. I did not, and do not, agree with the father’s evaluation as to the necessity of a psychiatric report. For this reason, when I raised the question of adjourning the matter for the purpose of re-issuing the subpoena to the D Hospital, I also raised the possibility of the father attending upon Dr O for psychiatric assessment during the period of the adjournment.

16. Counsel for the ICL submitted that an order requiring the father to attend upon Dr O would be hollow due to the father’s financial circumstances; simply put, the father could not afford the costs of the report and Legal Aid would not fund the report. For that reason, I did not make an order in those terms.  That Legal Aid funds are not available to provide such a report is most unsatisfactory.  That position has meant that the evidence as to both parents’ psychiatric functioning is incomplete; the Court is placed in the invidious position of determining what is in the child’s best interests without evidence that is relevant to that issue.     

Relevant Legal Principles

1. Section 60B(1) of the Act sets out the objects of Part VII of the Act. Those objects are to ensure the best interests of children are met by:-

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

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

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

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

2. Section 60B(2) sets out the principles underlying those objects.  They are that (except when it is or would be contrary to a child’s best interests):-

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. The parties in this matter seek parenting orders as defined in s 64B of the Act. That is they seek orders as to:-

   ·With whom the child lives;

   ·The time the child is to spend with her parents; and

   ·The allocation of parental responsibility.

4. In determining a particular parenting order, the best interests of the child is the paramount consideration (s 60CA). Sections 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to those considerations in detail below.

5. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA).  The presumption relates to the allocation of parental responsibility.  It does not relate to the time the child spends with each parent.  The presumption may be rebutted by evidence that satisfies me that it would not be in the child’s best interests for her parents to have equal shared parental responsibility (s 61DA(4)).  For the reasons set out later in this judgment, I am satisfied that it is not in the child’s best interests for the mother and the father to have equal shared responsibility.

6. The principles to be applied in cases involving allegations of sexual abuse were considered in B & B (1993) FLC 92-357. At p. 79,778 the Full Court stated:-

   The test propounded by the High Court in M v M and which is authoritative in this jurisdiction, is:- “That a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”.

7. Therefore, the standard applied by the Family Court is the “unacceptable risk” test; that is, the Court must achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.  In determining that issue, the paramount and ultimate issue for the Court remains the child’s best interests.  The resolution of an allegation of sexual abuse is subservient and ancillary to the Court’s determination of what is in the best interests of the child.

8. The relevant standard of proof in relation to allegations of sexual abuse is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that in applying that standard of proof, the court must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.

9. Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of the witnesses.  In what follows statements of facts constitute findings of fact.

The Issues

1. The issues in this matter, as identified in the parties’ affidavits, the Family Reports and during the course of the hearing may be summarised as follows:-

   ·The allocation of parental responsibility;

   ·The primary living arrangements for the child;

   ·Whether the child should spend time with the other parent and, if so, upon what basis;

   ·Whether the mother has been physically or verbally abusive towards the child;

   ·Whether the child has been exposed to family violence between the parents;

   ·Whether the father has sexually abused the child; and

   ·Whether the father takes illicit substances or drinks alcohol to excess.

2. The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2).

Section 60CC(2) Primary Considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. B lived with the mother from separation in 2004 until May 2013.  It is the mother’s view that the child should be returned to her primary care to ensure that the child will continue to have the benefit of a meaningful relationship with her.

2. The father’s views are in stark contrast to those of the mother.  The child has lived with him since May 2013 and she has spent no time with her mother since August 2013.  At the time of the preparation of Ms E’s second Family Report in January 2015, the father’s view had hardened to the point that he did not support the child spending any time with the mother; he could see no benefit to the child in maintaining her relationship with the mother. 

3. Whether there is benefit to the child having a meaningful relationship with each of her parents is a pivotal issue in the case. 

4. The question of what is meant by a “meaningful relationship” has been considered in a number of decisions.  In Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J considered the question of what is a meaningful relationship and concluded at paragraph 26 that a meaningful involvement “is one which is important, significant and valuable to the child”. Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents; that is, one that is important, significant and valuable as defined by her Honour.

5. In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court referred to a number of previous decisions and analysed what it said were three possible interpretations of s 60CC(2)(a) at paragraph 118 as follows:-

   (a)One interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);

   (b)A second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and

   (c)The third interpretation is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure that the particular child had a meaningful relationship with both parents (“the prospective approach”).

1. The Full Court concluded that the prospective approach is the preferred interpretation of the benefit to a child of having a meaningful relationship in accordance with the provisions of s 60CC(2)(a). However, it confirmed that the present relationship approach may be relevant to those considerations.

2. In her first Family Report dated 15 September 2014 (“the first Family Report”), Ms E describes the child’s presentation as “shy and withdrawn”.[1]  Ms E observed the child with her father over a period of 20 minutes.  Ms E reported that her observation of the child with her father did not suggest that there were any difficulties in their relationship.

   [1] First Family Report, paragraph 35.

3. Unfortunately Ms E was unable to conduct an observation of the child with the mother for the purposes of the preparation of the first Family Report as the mother was unable to attend for her original scheduled interview.

4. During discussion with the child Ms E noted the following description by the child of her mother:-

   [B] described her mother as “fun and really caring,” but said her mother could become angry very quickly and for reasons that were difficult to predict.  When [the mother] became angry, [the child] said her mother would often hit her with metal or wooden kitchen implements.  Once, at Christmas time when [the mother] and [the child] had a disagreement about a toy [the father] had sent, [the mother] told the child to “go and not come home,” and locked her out of the house for over an hour.  However, [the child] said that although her mother could be “scary,” she still loved her and would like to spend time with her.  [The child] acknowledged she would feel anxious the first time she saw her mother. She confirmed that she had received no mail from [the mother].[2]

   [2] First Family Report, paragraph 40.

5. Due to the mother’s allegations that the child had been sexually abused by the father, a supplementary Family Report was prepared by Ms E to address those issues.  That report is dated 20 January 2015 (“the second Family Report”).  Ms E conducted interviews with the parties and the child on 9 January 2015 for the purposes of the preparation of the second Family Report.  Ms E reports of a marked change in the child’s presentation and attitude in the second Family Report.  Ms E noted the child to appear more withdrawn and guarded than she had during the previous interview.  The child reported to Ms E that living with her father was “good” as he is “fair and nice”.[3] 

   [3] Second Family Report, paragraph 37.

6. Ms E observed a noticeable change in the child’s attitude towards her mother.  At paragraph 40 of the second Family Report Ms E reports that the child did not wish to participate in an observation with the mother although it was noted that the child said that that decision was based on her anxiety about being involved in the Court process rather than any wish about spending time with her mother in the future. 

7. Ms E is a psychologist who, in addition to her experience working as a Family Consultant in this Court, has worked as a child protection worker at DHS and as a child counsellor supporting children after separation.  There was no challenge to her qualifications.  As noted above, Ms E has prepared two comprehensive reports in this matter and has observed the child in August 2014 and January 2015; that she has had the opportunity to observe the parties and the child over a period of five months places her in a unique position to provide to the Court insight as to the challenges facing the child and the parties in navigating their relationships.  Ms E was cross-examined by all parties.  I observed her to be a thoughtful witness and her evidence to be balanced and considered.  I accept her evidence as to her observations of the shift in the child’s presentation between the time of her first Family Report and the second Family Report.    

8. B has made disclosures that she has been physically abused by the mother.  As the proceedings have progressed, the child’s psychological functioning has deteriorated.  The father and his former partner have given evidence that the child has engaged in self-harming behaviours.  I accept that evidence.  The child is now under the care of the specialist psychiatric unit at the D Hospital.  The evidence of Ms E indicates that the child has been assessed by the hospital as being at moderate risk of suicide.

9. In light of those circumstances, there is a significant concern that whilst desirable that the child have the benefit of a meaningful relationship with both parents, such outcome may not be possible.

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

10. In cases where there is inconsistency between the primary considerations under s 60CC(2), the Court is required pursuant to s 60CC(2A) to give greater weight to the considerations set out in sub-paragraph 2(b).

11. The challenge in this case is to balance the benefits to the child of maintaining a relationship with her mother against the need to protect her from the potential harm that she may be exposed to in the mother’s care

Is the child at risk of physical abuse by the mother?

1. As noted earlier in this judgment, these proceedings arose as a result of disclosures made by the child that she had been physically chastised by the mother. 

2. Disclosures have been made by the child to both Mr N and Ms E during the course of these proceedings. As to the disclosures made by the child to Mr N, he reported as follows in the s 11F Memorandum:-

   [B] identified various issues that have concerned and distressed her about her mother.  She explained that her mother on occasions has become angry with her and has “said rude things to me … she swears at me and calls me ‘idiot and stupid’.”  She further identified that her mother has “hit me”.  When this latter issue was further explored, the child explained that her mother had used a “plastic or wooden spoon” or her “hand” to hit her to various parts of her body; for example, “on my legs or my arms or my back.”  She was able to provide a coherent account of when these alleged instances have occurred and the manner in which she had been hit by her mother and under what circumstances.  She further claimed that when her mother has hit her with either a wooden spoon or her hand, she has sustained either some bruising or red marks to the parts of her body that had been hit.  Her descriptions of the marks and bruising did not suggest that they were significant in nature.

   Of particular relevance to the current dispute, [the child] stated that her mother most recently hit her “3 or 4 weeks ago”, and prior to then, “I think one week before”.  Overall, she claimed that her mother has tended to hit her more with a “wooden spoon” and generally “2 or 3 times a month.”  When the hitting has occurred, she claimed her mother has hit her on each occasion at the most “5-6 times”, and at the least “probably 2 [times]”.  She also stated that when her mother has hit her she has been “scared” of her mother and has wanted to “stay with dad a bit.”

3. Similar disclosures were made by the child to Ms E in the context of interviews for the preparation of the first Family Report, as noted above. 

4. Throughout her evidence, the mother has denied that she has hit the child or physically abused her.  During cross-examination by counsel for the ICL, the mother continued to deny that she had hit the child.  However during further questioning, the mother appeared to qualify that evidence and conceded that she gave the child three warnings that she would hit her.  The mother also gave evidence that the child tells lies and is manipulative.

5. That evidence is consistent with the mother’s reported attitude during intake interview at the contact centre.  During the first intake interview on 17 November 2013, the worker’s notes (Exhibit ICL 2) record the mother’s response to the allegations of physical abuse as follows:-

   Worker spoke to [the mother] about the allegations made by [the child] about her use of physical punishment.  [The mother] said she had yelled at her daughter and put her in her room but never hit her.  She said that she did not understand her daughter’s behaviour and she is very manipulative and a liar… She said that [the child] can be very badly behaved and constantly tests [the mother]. 

6. The notes of the second intake interview dated 23 November 2014 (Exhibit ICL 2) note the mother’s attitude as follows:-

   [The mother] talked about feeling angry and betrayed by [the child].  She believes that [the child] has lied about what happened with her father and this has made her [the mother] look like a bad mother.

7. Similar statements were made by the mother when cross-examined by counsel for the ICL; she again accused the child of being a liar and manipulative and further stated that the child had engaged in such behaviour since she was aged nine or 10 years.  The mother demonstrated no insight as to the impact of her evidence, that in effect, she was blaming the child for the predicament the mother now found herself in.  Further, it was apparent that the mother had no appreciation of the inconsistencies in her case - that the disclosures made by the child in respect of the mother’s conduct should not be believed due to her propensity to lie, yet the alleged disclosures made by the child to her mother regarding the father’s behaviour should be accepted.

8. Ms E was cross-examined by counsel for the ICL as to the child’s disclosure of physical violence against her by the mother.  Ms E confirmed that she had discussed with the child the allegations made by her against her mother during the first interview.  However due to the noted changes in the child’s presentation during the second interview, those issues were not further explored. 

9. The concerns regarding the impact of the parental conflict upon the child had overtaken the consideration of the allegations of physical punishment by the mother at the time of Ms E’s second interview.  Ms E gave evidence as to the significant psychological issues impacting on the child at that interview.  She described the child as being in an extremely fragile state.  Counsel for the ICL put to Ms E the proposition that whether or not the abuse actually occurred almost does not matter anymore in light of the child’s current presentation.  Ms E agreed with that proposition.

10. Ms E was clear that the child is being damaged by the conflict between her parents.  She stated:-

    It’s really time that she had a break from the Court and the Court conflict. 

11. With respect to the child’s perceptions in relation to violence perpetrated by her mother, counsel for the ICL asked whether she made such allegations as a mechanism to stop the conflict between her parents.  

12. Ms E’s evidence in response to that question was telling.  She noted:-

    Yes and I’ve talked to both parents about the defence strategies that children use when they’re caught in conflict between their parents, and there’s a – a really lovely theory that talks about there being four basic patterns of behaviour.  And the first one is that children will tell their parents what they think they want to hear, and I drew this up on the white board with a smiley face.  And then the next one is that children don’t tell their parents what’s happening at the other parent’s house and I draw that as a face with a straight mouth.  Then the next position, the third one, is that the child will pick a side to – they will, they will just stay with one parent and they will, they will start reporting those parent’s views.  They pick a side between their parents to try to get out of the conflict, and I draw that as a face with an unhappy mouth.  And then the last and most damaging position is when the child says ‘I hate’ a parent and ‘I don’t want to spend time with them’.  [The child] is not there at this stage… But I draw that with a face with a very angry mouth and I, and I ask parents to have a look at whether they think their child is presenting.  [The child] is presenting with the unhappy – she’s picking a side.  At the interview with me she was saying ‘Dad is gentle’ and ‘Dad is kind’. 

13. Ms E’s evidence was unequivocal.  She confirmed that it was her view that the child was picking a side to get out of the conflict between her parents.

14. Ms E further clarified the position noting:-

    At the previous report interview [B] was saying she wanted – she loves mum and she wanted to spend time with her, and she wasn’t saying that at the second interview, so there’s a shift there for her.  She’s picking a side. 

15. Ms E noted that the child spoke clearly about her mother’s violence towards her during the first interview. In the first Family Report Ms E also noted the mother’s “punitive attitude towards the child”.  On the basis of that evidence coupled with the mother’s concessions to Ms E and the contact centre worker that she had yelled at the child, I am satisfied on the balance of probabilities that the child is at risk of physical abuse in the mother’s care. 

Has the child been sexually abused by the father?

1. The mother alleges that the child has been sexually abused by the father.  The father denies that allegation and says that it has been made in response to the change in the child’s living arrangements following her disclosures that the mother has physically abused her.

2. The mother alleges that the disclosures were made to her by the child in January 2013.  The mother provides detail of the alleged disclosures in her affidavit filed 14 November 2014.  At paragraph 2 of that affidavit the mother deposes as to a conversation which is said to have occurred between she and the child in her kitchen in January 2013.  She deposes that:-

   [B] said, “Can you ask Dad not to touch me?” 

   I was stunned and I looked at her saying, “What do you mean?” 

   [B] said, “Whenever I go past Dad’s chair he pulls me to his lap and I have to sit on his lap.  He rubs his thing against my bottom.”

   I asked her, “What thing?”

   [B] said, “His penis.”

   I was shocked and could not believe what she was saying.  I said, “How long has this been going on?”

   She said, “Since grade prep.”

3. Counsel for the ICL cross-examined the mother as to her response to the child’s alleged disclosures.  The mother confirmed that the child had made no disclosures to her school, DHS, the police, her general medical practitioner, her friends or any other family member. 

4. The mother confirmed during cross-examination that prior to the alleged disclosure in January 2013, the child was happy to spend time with her father.  She stated that her attitude to spending time with the father was “up and down”.  The mother conceded that the child generally enjoyed spending time with the father.  She also confirmed that following the final orders made in December 2008 she had no concerns with the child spending time with the father. 

5. The mother confirmed that notwithstanding the fact that the child made the alleged disclosures to her in January 2013, the mother did not report the allegations to the police until 16 June 2013.  That is, the mother waited five months to report the allegations to the police.  Further, she stated that she only took that action after the ICL informed her that usually such allegations are reported to the police.

6. Further, the mother confirmed that following the child’s disclosures she took the child to her general medical practitioner.  The child made no disclosures during that attendance to her doctor.   When asked why she did not inform the doctor of the alleged disclosures the mother replied that she could not push the child to make the disclosures. 

7. During cross-examination, the mother stated she had not informed her former solicitor about the alleged sexual abuse as there was a student lawyer present during the interview. 

8. The mother also confirmed that she reported issues regarding the father’s conduct to DHS in May 2013.  However, the issues then raised by her did not include any allegation with respect to sexual abuse or sexually inappropriate behaviour by the father.  The focus of the mother’s complaints at that time (being a period of approximately four months after it is said that the child made disclosures of sexual abuse to her) was that the father posed a risk of emotional harm to the child.  When asked by counsel for the ICL why she had not raised the issue of sexual abuse at that time, the mother replied that she intended to come to Court and tell the Court about the alleged abuse.

9. Indeed it was only after the father unilaterally changed the child’s primary residency in May 2013 following her disclosures of physical violence by the mother that the mother then saw fit to report the allegations of sexual abuse to Suburb U police.  That report was made to the police by the mother on 16 June 2013. 

10. The mother admitted during cross-examination that her affidavit filed 20 May 2013 in support of her application for the child to live with her was silent with respect to the allegations of sexual abuse. During cross-examination, the mother alleged that she had told her then-lawyer about the allegation of sexual abuse and that her lawyer advised her not to include those allegations in the affidavit as she had “brought it up at the wrong time” and it could appear to the judge as though the mother had fabricated the allegations in order to have the child returned to her primary care.  

11. During her interview with Mr N for the preparation of the s 11F Memorandum in May 2013, the mother made no disclosures as to the allegations of sexual abuse. Mr N reports under the heading “Family Safety Factors” the mother’s allegations as follows:-

    ·the father has been physically violent and threatening towards her during the relationship;

    ·following separation the father has at times been physically aggressive towards her;

    ·the father has used and may still be using illicit substances; and

    ·the father consumes alcohol to excess. 

12. The mother’s allegations of sexual abuse by the father against the child were raised by her in the context of these proceedings for the first time during assessment by Dr O which occurred in February 2014, almost eight months after the commencement of the Court proceedings. 

13. In his report dated 12 June 2014 (Exhibit ICL 9) Dr O describes the mother’s disclosures with respect to the alleged sexual abuse in the following terms:-

    [The mother] provided a distinctly unusual account of [the child’s] alleged disclosure of sexual abuse from [the father].  It seemed particularly bizarre that despite allegations of prolific sexual abuse, and reporting to a doctor concerns relating to exposure to adult films and sexual activity, that there had not been reports to the DHS or police.  [The mother’s] account did not seem plausible, particularly given the mandate for medical practitioners to report sexual abuse.  [The mother] also could not provide a plausible account for her lack of reporting to the DHS and police.[4] 

    [4] Report of Dr O dated 12 June 2014, page 2.

14. Dr O described the mother as “an unconvincing, vague and guarded historian”. 

15. Later in his report Dr O describes the specific allegations made by the mother with respect to the father’s alleged abuse of the child.  At page 5 of his report Dr O notes the mother’s account of the child’s disclosures as follows:-

    [The mother] said [the child] informed her in May 2012 that [the father] had sexually abused her for five years from 2007 until 2012.  [The child] had also commenced attending the school counsellor, [Ms V], as she was “angry and tempered”.  The child] told [the mother] she would tell [Ms V] about the sexual abuse.  The school advised her to attend the GP. 

    [The mother] said she attended a GP, [Dr W], in [Suburb X], with the child.  [The mother] said the child did not inform the GP about the sexual abuse, but she did mention observing [the father’s] sexual activity and being shown adult movies.  [The mother] said she did not inform the GP about the child’s disclosure of sexual abuse, but did refer to “sexual things occurring at the house”.

    …

    [The mother] said the GP advised the child to not see her father.  The GP had asked the child how she felt seeing her father. 

    [The mother] said the GP did not notify the DHS.

    [The mother] said she discussed with the GP that she would inform the “Family Court” about her concerns.  [The mother] said she did not inform her lawyers, as she thought she would “tell my story in Court”.

    (Original emphasis).

1. At page 6 of the report, Dr O notes that the mother could not provide a plausible explanation as to why she had not informed the Family Consultant about the child’s disclosures of sexual abuse.  Dr O reports that the mother informed him that she understood the purpose of the Family Consultant’s assessment was to address the allegations made by the father with respect to her abusing the child.  That explanation does not appear consistent with the report of Mr N where he clearly notes complaints made by the mother as to the father’s conduct towards her and towards the child.  As noted above, the mother made allegations in respect of the father’s family violence and use of illicit substances and alcohol to Mr N during that assessment. 

2. Dr O was cross-examined in relation to the matters contained in his report.  There was no challenge to his professional qualifications.  He impressed as a patient and thoughtful expert witness.  The mother did not challenge Dr O’s account of the manner in which she reported the allegations of sexual abuse to him.  The thrust of the mother’s cross-examination of Dr O was to question him as to the impact of her feeling unwell on the day of interview upon his assessment. 

3. When questioned as to the mother’s presentation at interview, Dr O confirmed that his observation of the mother was that she was cautious and guarded; when questioning the mother as to her history, he was met with avoidance and a reticence to engage with him.  Dr O observed that the mother had not raised with him during interview that she was feeling unwell and further, whilst she was reluctant to discuss aspects of her family history with him, she spoke at length about other matters such as her relationship with the father; Dr O confirmed that those matters were covered comprehensively by the mother and are set out within the body of this report.

4. I am satisfied that Dr O has provided an accurate account of the mother’s statements to him with respect to the alleged sexual abuse.  Further, I accept Dr O’s assessment with respect to the plausibility of the mother’s account of the alleged disclosures.

5. Dr O’s assessment that the mother’s account of the alleged disclosure of sexual abuse was bizarre and implausible accords with my own observations of the mother’s evidence with respect to those events.  It is extraordinary that the mother, in the face of very serious disclosures by the child, remained mute for more than five months.  It was only after the child had been removed from her care that the mother was motivated to report the alleged disclosures to the authorities.  That she now seeks to blame her former lawyer for not including the allegations in her first affidavit filed in these proceedings reflects very poorly on the mother.  I am satisfied that the mother’s motivation for making the allegations was a desperate attempt by her to secure the return of the child to her care.  The mother’s evidence in relation to the alleged disclosures by the child was unconvincing and I do not accept her evidence in relation to those matters.

6. The alleged disclosures made by the child with respect to sexual abuse were investigated by SOCIT and DHS.  The allegations were not substantiated and there was no further investigation into the allegations. 

7. B has been attending counselling with Ms J since 2013.  There have been no disclosures of sexually inappropriate behaviour by the father towards the child during those counselling sessions.

8. B has been interviewed by the Family Consultant, Ms E, in August 2014 and January 2015.  Again in that context there has been no disclosure by the child of any sexually inappropriate behaviour by the father.

9. Having regard to the chronology of events with respect to the mother’s actions in the aftermath of the alleged disclosure, and the fact that the child has made no disclosures to any other person, including her counsellors, general medical practitioner and the Family Consultant, I am satisfied that the mother has raised these allegations in order to bolster her case for the return of the child to her care.  Notwithstanding the absence of disclosures to anyone other than herself, and in the face of there being no disclosures in the context of the investigations by SOCIT and DHS, the mother maintained throughout the proceedings that the father poses a risk to the child.  Taking into account all of the evidence I am satisfied on the balance of probabilities that the child has not been sexually abused by the father and that he poses no risk to her in this respect.

Does the father use illicit substances or drink to excess?

1. The mother alleges that the father uses drugs and drinks alcohol to excess.  In her affidavit filed 14 November 2014 the mother deposes at paragraph 2 as follows:-

   … we had heated arguments when we lived together because [the father] spent all the money on buying illegal drugs for himself.  This meant there was very little left for the necessities of life for the three of us. 

2. Those allegations were repeated by the mother to Ms E, Family Consultant, during interview in August 2014.  During interview in January 2015 Ms E reports that the mother alleged that the father misuses alcohol, cannabis and amphetamines.  The father denies those allegations. 

3. Those allegations have been raised by the mother in previous proceedings with respect to the child’s care.  During the course of those earlier proceedings, the father was required to undertake random drug screens.  Two screens were undertaken by the father in May and June of 2008.  The results of those drug screens confirm that the father tested negative for illicit substances (Exhibit ICL 6).

4. During cross-examination, the father conceded that early in the relationship with the mother he did smoke marijuana in the company of friends and that some of those friends had “moved on to harder drugs”.

5. The father’s evidence in relation to his prior drug use was open and forthright.  He conceded his historic use of marijuana.  The drug screens from 2008 indicate that there was no evidence of drug usage by the father at that time. 

6. In circumstances where there is no evidence of any drug use subsequent to that period, I am satisfied on the balance of probabilities that the child is not exposed to any use of illicit substances by the father when in his care.  Further, I am satisfied that there is no evidence to support the mother’s allegations that the father drinks alcohol to excess.

Is the child at risk of psychological harm?

1. The manner in which the mother has conducted the proceedings, including, but not limited, to the way in which she raised the issue of the child’s alleged disclosures of sexual abuse give rise to very real concerns that the child is at risk of psychological harm from the mother.  I have already found that the child has not been sexually abused and is not at risk of sexual abuse by the father. I have also found that the child is not exposed to illicit substance use or excessive alcohol use in the father’s care. In that context, the question is raised as to whether the allegations made by the mother reflect a reluctance by her to facilitate a relationship between the child and the father.  The manner in which those allegations came to light also raises issue as to the mother’s insight and understanding of the impact of her behaviour upon the child. 

2. In his report Dr O highlighted the difficulties in assessing the mother due to her failure to openly engage in the assessment process.  It was his assessment of the mother that she was deliberately guarded and evasive during interview and he postulated that such behaviour may have been due to the mother’s desire to avoid self-disclosure with respect to potentially relevant developmental and family factors. In conclusion Dr O reported as follows:-

   There is [sic] sufficient oddities to [the mother’s] presentation to raise concerns that her account of matters is inaccurate.  There are potential indications that she has mental problems, but it is difficult to determine their precise quality and nature. 

3. Dr O was not shaken from those views during cross-examination.  Although limited due to the lack of information provided by the mother during assessment, Dr O’s report does highlight concerns with respect to the mother’s functioning.  I accept Dr O’s evidence regarding those matters.

4. The behaviour observed by Dr O is consistent with the mother’s behaviour during the course of the hearing.  During cross-examination of witnesses, the mother was prone to make rambling, discursive statements rather than ask questions of the witnesses.  The mother was difficult to focus on the issues in dispute and demonstrated little capacity to focus on the issue of the child’s best interests rather than the injustice to the mother of the child having been removed from her care.

5. The seeming inability of the mother to contain her behaviour is a matter of concern that has been raised by the father and other professionals in these proceedings. Not only has the spectre of the mother physically abusing the child been at issue but also her ability to engage appropriately with the child when spending time with her and in written communication with her.

6. The August 2013 orders of Senior Registrar FitzGibbon made provision for the mother to spend supervised time with the child at a contact centre.  In order to commence spending time with the child at the contact centre the mother was required to attend for an intake interview.  As noted earlier in this judgment, during interview, the contact centre worker noted the mother’s report that she had yelled at the child and put her in her room but that the mother denied hitting her.  The mother is reported to have told the worker that the child is very manipulative and a liar and that the mother has been made out to be a bad mother by the child and the father. 

7. Ultimately as a result of the mother’s behaviour at that interview the contact centre determined that it could not provide a supervised visit program for the family.  That decision was based upon the mother’s presentation as “confused, angry and disappointed” and their concern that the mother was unable to contain those emotions when with the child (Exhibit ICL 2).

8. Whilst the contact centre declined to offer its services, the mother also determined that she did not wish to avail herself of supervised time with the child as she found it too difficult.  Thereafter from December 2013 to the time of hearing, the only communication between the child and the mother was through letters sent by the mother to the ICL in accordance with Court orders. 

9. The orders made in December 2013 enabled the mother to send to the child via the ICL no more than two cards or letters each week.  However even that means of communication has been fraught with difficulty due to the mother’s inability to focus on the child’s needs rather than her own.  Since those orders were made, the mother has sent only two letters to the child.  Even that limited communication has been problematic.

10. For example, in January 2015 the mother forwarded a letter for the child to the ICL.  The ICL formed the view that the content of that communication was inappropriate for the child.  Accordingly, having obtained advice from Ms E, Family Consultant, the ICL returned the letter to the mother with a recommendation to her to seek some assistance from her counsellor to re-draft the letter so that it could be forwarded to the child. 

11. The mother produced the original of that letter during the course of the hearing and it was tendered (Exhibit ICL 8).  That letter to the child read as follows:-

    My beautiful [B] how are you?  I am fine but I do miss you a great deal.  Life is not the same without you here.  Something is missing in my life when you are not near me.  I LOVE YOU VERY MUCH.  I am hoping I will see you soon I pray to God that I could see you last Friday with [Ms E].  Please the child come to the appointments to see mum.  I waited 1 year to see you but you didn’t come.  I hope I can see you soon. 

    [B] I posted card and a letter for you but it got lost because the [ICL] lost your letter and a card.  I was writting [sic] to you.  And also your letter got lost because of [the ICL].  I didn’t get that neither to mum.  But we can write to each other I hope this letters [sic] will not get lost.  I think of you every day.  I talk to [Ms Y] about you she said you don’t write to her.  Please keep friends with [Z].  [B] MY LOVE PLEASE, PLEASE LOOK AFTER YOURSELF.  I LOVE YOU SO MUCH.  I am happy to know you are still enjoying doing your art.  You are always very creative and excellant [sic] in art and drawing.  I know you musick [sic]. So what do you like to listen to know what you are a teenager?  Do you still enjoying listening to One Direction?  Remember all the fun we had dancing to ABBA songs? And playing on the Wii games? 

    I am still doing my painting and going out with friends for swim and walking every week.  Which I realy [sic] enjoy.  I think of you often.  I am going on long walks just like we used to do.  It is very hard to believe you are now 13½ and going on to your second year of high school.

    I go to church every Saturdays like we used to together.  I miss you not having next to me on the church bench. 

    Do you hear from [Z]?  She misses you too and [AA] the dog and [BB].  [Z] is the oldest friend, as you met her in prep.  Remember when we used to take her to the [Country F] New Year’s festival?  She realy [sic] loved coming with us.  Your grandmama in [Country F] always asks about you.  Aunty [CC], [DD] aunty, [EE] aunty send loved regards.  [Ms FF] your class teacher gave her regards and pray for you every day.  I pray for you every day.

    Your grandmama in Country F looking forward to hear your voice over the phone.  Please don’t stay mad at your mum she loves you so much.  Do you still play with Polly Pockets?  I made your bedroom all nice and beautiful one day you can have a sleepover but no rush.  Do you still do sewing?  Please send me a Mother's Day card.  I am thinking of buying a cat what you think?  One day I can buy you a goldfish pets.  [GG] and [HH] gave their love.  [II] gave their love, [JJ] and family gave their love.  [KK] gave special love.  I made 4 more friends and their families.  They have lots of children. Also they have a trampoline.  My friends asks me the child can come over to play with their children.  I made 6 new friends around local area.  Do you still like to go to Scouts?  [LL] rang to me from Scouts leader and asked about you. What kind of sports do you do?  Do you still play netball last time you told me you play netball?  Do you go to swim with your dad?  Asks him to take you to swim and walks.  Have your hobbies every day that way you are busy.  Asks dad to take you to church pray to God.  That make anyone feel better or go with granma [sic] to church in [Q Town].

    Remember you said you like to sing in the choire [sic] ask your to join you for the choir practise.  Don’t give up your dreams.  You have a beautiful voice for singing.  I will buy some gifts for you and send it.  Please do many things that way you are never boad [sic].  Since you have gone I am also so board [sic] and then I started doing swim, walk in the park other activities.  PLEASE [B] DON’T FORGET ABOUT GOD JESUS CHRIST because you one baptise you need God and pray for me too.  I save money in your bank for you so my friends gave gifts for you at home with me.  Their [sic] all for you.  Please make me cards and letters I love to receive your cards.  Set up activity chart please [B] and include your hobies [sic] don’t forget to write your diary.  Pray for father and grandparents too.  We all need prayers and God will be their [sic] for you God care and love you.  One day we can do the confirmation and have a party.  I know you loves parties and dinner out one day I will take you dinner again remember we used too [sic].  Good times will come again have hope for good fortune for us. 

    [B] we are mother and daughter and you are very special to my life. 

    Please take extra care when cross the roads and look both ways before you cross the road. 

    I know you love your mother rember [sic] you made lots of cards for me please do that again because it keeps you busy and happy.  Make cards for your friends and teachers. 

    [Ms FF] your class teacher asks about you praying for you.  Please keep happy thoughts all the time it’s very important. 

    [MM] your classmate, [NN], [OO] gave their regards. 

    I promis [sic] I will take you swim pool again and we can have fun in the water. 

    Eat well smille [sic] and pray be happy. 

    I love you forever.  Bye for now.  God bless you.  Ever LOVE MUM!!  PS kisses and hugs Mum.  [B] pray to Mother Mary and God stick them on the wall next to your bed. 

    I sent you picture of Mother Mary and God Jesus Christ. 

    Please my love pray for everybody and yourself it would lift your spirit up.  Say Our Father and Hail Mary prayers every day.  Have God throug [sic]  your prayers.  Pray for the Holy Spirit and God.  Love you.

    I am sorry I ran out of nice fancy paper.  I have to buy some more.  BE HAPPY WITH SMALL THINGS YOU DO AND REJOICE LIFE. 

    It break [sic] my heart not to have you with me and take you to school every day.  I enjoyed life with you so much I get jealous when I see other children go to school with their mothers.

    I wish my daughter is with me and I have the same like that mothers.  Anyway one day I will.  Please the child I am looking forward to see you in the future.  I cancel by trip to [Country F].

    Do you do gardening grow flowers in the garden. Rember [sic] we planted sunflowers together and you planted apricot tree it got lots of flowers.  Remember keep busy. 

    We have new neibours [sic] people next door to me they are from [Country F].  They got two girls.  One is 3 years old and other is 8 years old.  Girls ask about you.  They said they love to see you one day.  They speak [Country F] and English.  They visit me every week.  I cook for she does cook for me too.  It’s important to see your mum and have a relationship.  You need both parents my dear [B].  Keep hope move on forward in life.  The reason I could not see you the children contact centre is very fully booked for us.  When they have a spot for us I can see you there and I looking forward to see you very soon. 

    I love you and I raise for 12 years I know you misses me deep in your heart you loves me. I will never forget you.  You are always with me in spirit.

12. As well as the script, the letter contained circled messages for the child.  Those messages included the following:-

    ·“Please asks [sic] your father to take you to the beach.  Remember we went to the beach every weekend”;

    ·“[B] please do bedtime prayers every day night”;

    ·“Don’t trust boys”;

    ·“Have Jesus in your life.  You will get good feelings”.

13. Ms E commented upon the letter at paragraphs 41 to 43 of the second Family Report, concluding that the letter was unsuitable for the child as it contains material related to the parental dispute, repeatedly questions when the mother will see the child again, and contains numerous exhortations regarding the child’s religious practice.  Ms E further observed that the mother’s repeated statements of how much she missed the child conveyed the mother’s desire to spend time with the child rather than expressing affection unconditionally.

14. During cross-examination Ms E was shown the letter (Exhibit ICL 8).  She was cross-examined in relation to her views regarding the letter.  During her oral evidence Ms E confirmed her original reservations about the letter and its inappropriateness for the child.  It was Ms E’s view that such communication to the child should be shorter and in a lighter tone.  She observed that the letter is very long.  She also observed that in the context of it being only the second letter that the child had received over a very long period in circumstances where the mother is permitted to send correspondence on a weekly basis, it was unfortunate that such a lengthy letter had been sent. 

1. The evidence of Ms E was unequivocal in relation to the question of supervision.  It was her view that the mother is unable to contain or restrain her behaviour around the child.  Ms E’s view was that the child was at significant risk of psychological harm in the mother’s care were the mother to be unsupervised.  I accept that evidence. 

2. In light of the mother’s attitude towards supervision, it follows therefore that there be an order that she spend no time with the child.  Accordingly, issues as to the practicality or expense associated with facilitating the child’s time with the mother or the impact of any change of arrangement upon the child is not a relevant consideration as an order in those terms does not represent any change to the child’s current circumstances. 

   (g)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;

3. The mother is from Country F and the child’s maternal grandmother continues to live in Country F.  The child’s first name is a Country F name although she chooses not to use that name. 

4. The tragedy for the child is that by virtue of the mother’s attitude towards spending time with her and her refusal that such time be supervised, the child’s connection with her Country F heritage through her mother will likely be lost.  That this is so is largely due to the position adopted by the mother throughout these proceedings.

   (ca)the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the child

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)    the likely impact any proposed parenting order under this Part will have on that right;

5. These matters were not raised and are not relevant in the current dispute.

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)     the order is a final order; or

   (ii)    the making of the order was contested by a person;

6. Earlier in this judgment I have dealt with the issues regarding allegations of physical abuse and sexual abuse of the child.

7. In addition to those matters, the mother alleges that there is a long history of family violence perpetrated against her by the father during the parties’ relationship.  In her affidavit filed 14 November 2014 the mother at paragraph 2 admits that the parties had heated arguments when living together.  She denies hitting the father and makes allegations that he hit, kicked and punched her both prior to and after the child’s birth. 

8. In the last paragraph of that affidavit the mother alleges that, following the parties’ separation, the father attended the former matrimonial home to collect his personal belongings.  On that occasion she alleges that the father verbally and physically abused the mother in the backyard. 

9. The father was cross-examined in relation to the allegations of family violence.  He denied that he had been violent towards the mother although he admitted that the police had attended the former matrimonial home on a number of occasions during the parties’ relationship. The father, whilst denying that he had been violent towards the mother, alleged that the mother had displayed violence towards him.  The father alleged that the mother had threatened him, including threats with a meat cleaver, had hit him and had poured chilli powder in his eyes when he was in bed asleep.  None of those matters were put to the mother by the father during cross-examination. 

10. The Police were called to the parties’ home on 13 January 2003.  The father admitted that he had called the police to the home on that occasion.  The Victoria Police summary report of that attendance (Exhibit ICL 1) provides a narrative of that attendance in the following terms:-

    [The father] has called police due to being concerned that the domestic was getting out of hand.  Both parties have admitted to police using physical violence ted’s each other in the past.  On this occasion no nil physical violence used twd’s each party… Advice given to seek counselling to avoid future problem.

11. The father’s explanation for the Police account of that incident was that this was the police interpretation of that event, rather than what actually occurred.  He did not concede that the parties had been violent towards each other. 

12. When pressed, the father conceded that on one occasion he had told the police that he had restrained the mother from hitting him.  He expanded on that response stating that he had stopped the mother and had held her down.  Again when pressed in relation to that incident the father eventually conceded that he had swung an arm at the mother to keep her away and hit her in the face.  The father’s explanation for that event was that his perception was that it was an act of defence.  He did not concede that it was an incident of family violence. 

13. The mother made no concessions in relation to her role in the violent exchanges between the parties. 

14. Having observed the parties give evidence in relation to these matters, I am satisfied that both the father and the mother were less than frank as to their role in the family violence perpetrated by them during the relationship.  I am satisfied on the balance of probabilities that on at least one occasion the father has displayed violence towards the mother, hitting her.  Further I am satisfied that the father sought to minimise the seriousness of that incident.

15. The parties separated in 2004, almost 11 years ago.  Since that time there have been no reported incidences of family violence between them.  The child was aged two years at the time of the parties’ separation.   Accordingly, I am satisfied that it is unlikely that she has any recollection of the violent exchanges between the parties that occurred during their relationship.

16. Notwithstanding the significant period of time that has lapsed since the parties’ separation, and the fact that the parties have had no direct communication for a substantial period of time, on 27 January 2015 the mother made application for an intervention order against the father.  The matters relied upon by her in support of that application are as follows:-

    The respondent and I are going through the Family Law Court proceedings in relation to our daughter.  The Resp has written a statement in a ‘Family Report’ dated 20 January 2015 which defames my character.  The Resp wrote that I suffer from undiagnosed and untreated mental health issues.  He also stated that I only care about my own needs and it would be in my daughter’s best interests not to have contact with me… The Resp has been abusive towards me in the past.  In 2001, I was eight months pregnant and the Resp hit me in the stomach to try and abort the baby.  Around this time, the Resp would constantly rape me and call me his ‘sex slave’ and say ‘you are my black servant and bitch’.  It upsets me every now and then when I think about his behaviour and the damage it has caused me.  In 2002, the Resp punched me in the stomach until I passed out on the floor.  In 2009, the Resp abused me by screaming and yelling at me in the McDonald’s carpark.  I am seeking an order against the Resp because he uses any opportunity to abuse me.  He has written damaging information about me in court reports.

17. The principal motivation for the mother making that application appears to be statements made by the father to Ms E during interview for the preparation of the second Family Report.  Save for the allegations in relation to the father’s conduct in 2009, the other allegations relate to events that occurred during the parties’ marriage which ended upon their separation in 2004.  The parties were engaged in proceedings regarding the care arrangements for the child in 2007 and those proceedings concluded upon the making of consent orders in 2008, which provided for the father to spend unsupervised time with the child and that the parties have shared parental responsibility.  In those circumstances, the mother’s resurrection of the allegations of family violence perpetrated 10 years ago or more for the purposes of her application for an intervention order and more generally in the context of these proceedings is indicative of her inability to focus on the issues currently before this Court.

18. I have no doubt that at the time of the parties’ separation the mother faced significant difficulties, particularly in the context of the findings I have made regarding the father’s conduct towards her and in circumstances where he was absent from the child’s life for extended periods. 

19. However, since December 2008 the father has been actively involved in the child’s life and has had unsupervised time with her.  The orders consented to by the parties in 2008 marked the commencement of a new chapter in the child’s life.  The regurgitation by the mother of the events that occurred either prior to or at the time of the breakdown of the parties’ relationship suggests an inability by her to leave those events behind.  Again, this was a feature of the manner in which the mother presented her case. 

    (l)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;

20. It is always desirable to make orders that are the least likely to lead to further proceedings in relation to a child. 

21. B has been the focus of litigation between her parents since 2007.  She is now aged almost 14 years and the evidence of Ms E confirms that the on-going conflict has taken an enormous toll on the child’s health and well-being.  Since at least November 2014 the child has been engaging in self-harm and has been assessed as a moderate risk of suicide.

22. Accordingly, the orders made must ensure that the child is protected from further conflict between the mother and the father.  Given the parties’ inability to co-operate and communicate regarding the child’s care, and in circumstances where the mother would prefer to be absent from the child’s life rather than spend time with her in a supervised setting, the only alternative is to make orders that the mother spend no time with the child.

    (m) any other fact or circumstance that the court thinks is relevant.

23. There are no other factors relevant in the determination of this matter.

Conclusion

1. The ICL and the father propose that the father have sole parental responsibility for the child.  In my view, sadly, that is the inevitable outcome of this case.  In circumstances where the mother was the child’s primary carer until 2013, the removal of her from a position of sharing parental responsibility is dramatic.  However, that decision is necessary to due to my findings as to the mother’s level of understanding and insight as to the impact of her behaviours on the child. 

2. During cross-examination, the mother stated in no uncertain terms that she is unable to communicate with the father nor does she have any desire to do so. 

3. Accordingly, I am satisfied that the presumption of equal shared parental responsibility pursuant to s 61DA of the Act is rebutted. On any view it is not in the child’s best interests for the mother and the father to share parental responsibility for decision-making in circumstances where they are unable to communicate.

4. I have made findings that the father has not sexually abused the child and poses no risk to her.  At this time the child seeks to continue living with the father.  The recommendations of Ms E confirm that the father should continue to be the child’s primary care-giver.  Whilst I have been critical of many aspects of the father’s parenting, having regard to the recommendations of Ms E, I am satisfied that it is in the child’s best interests that an order be made that the child live with the father.

5. Having observed the mother over the course of the hearing I have real concerns as to her psychological functioning and capacity to truly understand the impact of her behaviours.  As noted earlier, due to her lack of engagement in the assessment process with Dr O he was not able to draw any conclusion as to her mental health status other than to note that her presentation raised concerns and that there were potential indications of mental problems.  I accept that evidence. 

6. In her closing submissions the mother indicated that she would “walk away” from the child in the event that I was not minded to make orders as sought by her.  That attitude is another example of the mother elevating her own needs above those of the child.  The mother throughout the trial has been fixated on her loss of her parenting role rather than the child’s loss of the mother with whom she lived for the first 11 years of her life.  The mother demonstrated no insight or understanding as to the issues currently confronting the child. 

7. As a consequence of my concerns regarding the mother’s presentation and her inability to focus on the child’s needs, I am satisfied that an order should be made that the child spend no time with the mother.

8. The ICL submitted that orders should be made restraining the father from relocating with the child to live outside the catchment region for the Suburb C unit where the child is currently receiving treatment.  Further the ICL sought orders that the father do all acts and things to ensure that the child continue to attend upon that unit for treatment.  Orders were sought in those terms to ensure that the treatment the child is currently undertaking continues.  The evidence of Ms E is that the child is at a very delicate stage in her treatment.  The child’s mental state is fragile.  I am satisfied that she should continue with her current treatment to ensure the best possible outcome for her.  Accordingly, I will make orders requiring the father to ensure that the child continues to undertake treatment at the Suburb C Unit of the D Hospital. 

9. Further, I am satisfied that it is appropriate that there be orders that the father and the mother each abide by the directions of Suburb C and P Group (the agency which has previously provided counselling services to the family) with respect to the child’s treatment. 

10. The ICL also sought orders that the evidence provided by Ms E on 19 March 2015 be transcribed and provided to the child’s treating doctors at the D Hospital.  The basis for that submission was that such an order will ensure that the child’s treating doctors are provided with all relevant material; this will provide context to her current issues and a background history in relation to the child’s family.  The father supported orders in those terms.  The mother did not make any submission in relation to those matters.  In the circumstances I am satisfied that it is appropriate that that information is provided to the child’s treating doctors.

11. The ICL also sought orders that the mother be provided with information and reports regarding the child’s treatment by the D Hospital. I am satisfied that it is important that the mother continue to be provided information as to the child’s progress.  Whilst her stated position at the conclusion of the hearing was that she would disengage from the child’s life, it is to be hoped that with the passage of time and hopefully engagement with her own counsellors, the mother may at some point in the future seek to re-establish her relationship with the child. The provision of information to the mother regarding the child’s treatment and progress may assist the mother in developing some insight as to the child’s problems. 

12. Further it is possible that the mother will be requested to attend counselling with the child by her treating doctors in the future. The provision of information to the mother regarding the child’s progress may provide her with some incentive to re-engage with the child in the future.

13. The ICL also sought orders that the mother be restrained from removing or attempting to remove the child from the father’s care.  In light of the findings I have made in relation to the mother’s role in the child’s life, I am satisfied that an order in those terms is appropriate.  As indicated earlier in this judgment it is imperative that the child be protected from any conflict between her parents.  I am satisfied that the mother has had on-going difficulties in containing her behaviour around the child.  In those circumstances I propose to make an order as sought by the ICL.

14. It is to be hoped that with the conclusion of these proceedings, the parties will focus their energies on supporting the child as she undertakes her treatment with the D Hospital. the child is entitled to a life without conflict where she feels protected and secure. I propose to make orders which will safeguard the child from future conflict between her parents. 

15. Accordingly, the orders I will make are as follows:-

    1.That all previous orders relating to the child B born … be discharged.

    2.That the father have sole parental responsibility for the child.

    3.That the child live with the father.

    4.That the child spend no time with the mother.

    5.That the father do all such acts and things and sign all documents as may be required to ensure that the child continue to attend upon the Department of Child & Adolescent Psychiatry at Suburb C, D Hospital, Melbourne (“Suburb C”) for such period and at times as directed by the child’s treating doctors at Suburb C. 

    6.That the father abide by all lawful directions of the child’s mental health workers, psychologist and psychiatrist.

    7.That the father and the mother be and are hereby restrained from removing the child from the Commonwealth of Australia. 

    8.That the mother by herself, her servants or agents be and is hereby restrained from removing or attempting to remove the child from the father’s care, whether the child is with him, at school, during extra-curricular activities, with friends or relatives or in any other place.

    9.That the mother and the father do all acts and things as may be required to keep the other informed as to their current residential address and telephone numbers.

    10.That the evidence of Ms E, Family Consultant, given on 19 March 2015 be transcribed and the ICL be permitted to provide a copy of that evidence to the child’s treating doctors at Suburb C or any other counsellor or treating practitioner that the child may see from time to time.

    11.That the father do all such acts and things as may be required to authorise the child’s treating medical practitioners at Suburb C or any other counsellor attended by the child from time to time to provide to the mother with reports or information in relation to the child’s progress.

    12.That the father authorise any school attended by the child to supply school reports and school photograph order forms to the mother with the mother to meet any expense relating to the provision of such school reports or photographs.

    13.That the father do all such acts and things as may be required to authorise P Group and Suburb C to exchange case management information in respect of the child.

    14.That the appointment of the Independent Children’s Lawyer be discharged.

    15.That all extant applications be otherwise dismissed and the case removed from the list of cases awaiting finalisation.

    16.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

    IT IS DIRECTED

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

I certify that the preceding two hundred and forty-one (241) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 26 June 2015.

Associate: 

Date: 26 June 2015