WILTON and WILTON

[2016] FCWA 66

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: WILTON and WILTON [2016] FCWA 66

CORAM: THACKRAY CJ

HEARD: 21 - 25 SEPTEMBER 2015, 18 - 21 JANUARY 2016,

1 JUNE 2016

DELIVERED : 2 AUGUST 2016

FILE NO/S: PTW 1133 of 2011

BETWEEN: MR WILTON

Applicant

AND

MS WILTON
Respondent

Catchwords:

CHILDREN - Parental responsibility - With whom a child lives - Each party seeks sole parental responsibility and that the child live with them - The mother claims that the father has sexually abused the child, but the claims have not been substantiated and her counsel conceded that the evidence is insufficient - The Independent Children’s Lawyer and one of the experts recommended that the child live with the father - The mother is highly anxious, has dysfunctional views and is not likely to promote a relationship between the child and the father - The experts agree the child is more comfortable when in the father's care - It is in the child's best interests for the father to have sole parental responsibility, and for the child to live with the father and initially spend supervised time with the mother - Proceedings to be relisted for final orders to be made, including a possible review by an expert of the arrangements in six months' time.

Legislation:

Family Law Act 1975 (Cth), s 60CC

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr Berry SC

Respondent: Ms Auburn

Independent Children's Lawyer : Ms L

Solicitors:

Applicant: Perth Family Lawyers

Respondent: Robertson Hayles

Independent Children's Lawyer : Law Firm A

Case(s) referred to in judgment(s):

M v M (1988) 166 CLR 69

Thornton & Thornton [2015] FamCA 92

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1I am required to determine the future living arrangements for [J], who will turn 6 [in] 2016. J’s mother has always been her primary carer, but for the reasons that follow, I have reluctantly decided J should now live with her father.

The parties and their relationship

2[Ms Wilton] (“the mother”) is 28 years old and is not in employment. She lives in [Suburb A] in the far north of Perth, and often spends time with her mother in [Suburb B].

3[Mr Wilton] (“the father”) is 36 years old and works as a [mechanic]. At the commencement of the trial, he was living with his parents in [Suburb C] while his home was being renovated. By the time the trial concluded, his house was on the market.

4The mother and father were married [in] 2008. Their marriage was volatile and they separated often, before parting finally in January 2011. In total, they only lived together for about a year. J was born [in] 2010, and was therefore just a baby when her parents finally separated.

5The mother was born [interstate] and has four sisters and one brother. Her parents separated when she was 8 years old, and she moved to Western Australia with her mother at the age of 16. Her father still lives interstate, as do two of her sisters and her brother. Soon after the final separation, the mother went to live with her father, but in April 2011, she was ordered to return and live within 25 kilometres of Suburb C.

6The mother and J have lived in various homes, initially in the Suburb C area, but in the last couple of years in the northern suburbs of Perth. The father has attempted to spend regular time with J, but his efforts to do so have often been thwarted. The mother has made persistent claims that the father has sexually abused J, but the claims have not been substantiated. In her closing address, the mother’s counsel conceded that the abuse claims were not supported by the evidence.

The trial

7Although the proceedings started in 2011, the trial did not commence until September 2015. The five days initially allocated were insufficient and the trial was stood over until January 2016, when it was completed after four more days. Judgment was reserved on 21 January 2016. Both parties were represented during the first two stages of the trial.

8In April 2016, the father applied to re-open. Further evidence was given on 1 June 2016, by which time the mother’s solicitors had ceased to act. Having heard further evidence, including that the contact visits had stopped altogether, I advised that I was contemplating a change of residence. I warned the mother that the change could be made prior to delivery of my reasons if J did not recommence spending time with her father and did not start attending school again. Although J recommenced attending school, the visits with the father did not resume. On 13 June 2016, I ordered that J should live with the father and, for the time being, have supervised time with the mother. I gave brief reasons for my decision, and advised that detailed reasons would be delivered in due course.

The mother’s proposals

9At the outset of the proceedings, the mother sought that J live with her and that there be equal shared parental responsibility. She sought to relocate interstate, and proposed that the father spend time with J “as agreed by the parties or ordered by the Court”. I have no doubt that her intention then was to cut the father out of J’s life.

10The mother’s plan to relocate fell by the wayside. At the conclusion of the trial in January 2016, her counsel conceded that whatever the outcome, the mother would need to relocate to the Suburb C region. As her proposals were unclear, I directed the mother to file a Minute setting out the orders she wanted. In her Minute filed on 28 January 2016, the mother proposed that she have sole parental responsibility and that the father spend time with J not less than once a week. She proposed that the time “initially be supervised”, with a review after six months “upon the provision of a Report from [the father’s] psychologist which addresses the Father’s capacity to have unsupervised time”.

The father’s proposals

11The father’s Minute filed on 15 July 2015 sought that J live with him and that he have sole parental responsibility. He proposed that J initially spend supervised time with the mother not less than once a week. He also proposed that the mother “undertake reportable psychiatric assessment and treatment by a practitioner recommended by the Independent [Children’s] Lawyer”. After six months of treatment, and upon provision of a report from the mother’s psychiatrist addressing her “capacity to have unsupervised time”, the father proposed that the mother’s time with J be reviewed.

12The father also sought a variety of injunctions aimed at preventing the mother from pursuing her allegations of sexual abuse and denigrating him.

The proposal of the Independent Children’s Lawyer

13At the conclusion of the trial in January 2016, the Independent Children’s Lawyer (“ICL”) proposed a staged movement toward equal shared care; however, after hearing the evidence on 1 June 2016, she changed her position and proposed that J live with the father. Indeed, she went so far as to indicate that she felt the change of residence should occur “forthwith”, rather than awaiting the delivery of my reasons.

14Although I could see the merit in an immediate change in residence, I recognised that J had not seen her father since March 2016. I wanted to impress upon the mother the importance of contact resuming, and I hoped that my strong remarks would ensure this occurred before there was any change in residence. I was also troubled that there were no firm arrangements in place for counselling for J, which I felt would be needed to support her through what would be a traumatic transition. I therefore reserved my decision again, but made orders to set up suitable counselling for J.

15On 3 June 2016, I convened a special hearing at which I told the ICL that she was at liberty to inform J’s psychologist that the primary purpose of the counselling was to support J through the transition of residence that I intended to order. I did not give the parties notice of this hearing, as I did not want to cause the mother further distress, which would negatively impact on J. I was also concerned that the mother might abscond if she knew for certain that J was to live with the father.

16When the contact visits did not resume, the father sought a relisting. I allocated an appointment on 13 June 2016 and directed that the mother place J in the court’s child-minding service before the hearing. At the hearing, the ICL proposed an immediate change of residence. Orders were made to that effect, and I am advised that J was taken away by her paternal grandmother, as I had suggested, with a view to being reunited with the father. I made interim orders for J to spend supervised time with the mother for two hours each weekend, and for the mother to have telephone contact twice a week. I foreshadowed that different contact orders would be made in due course, but I considered the interim orders would be sufficient pending delivery of these reasons.

Impressions of the mother and her family

17Mr Burke was originally appointed as the Single Expert in May 2013. He interviewed the mother once in August 2013, and he also conducted a home visit during which he observed the mother’s interaction with J. Mr Cairns was later appointed as a “further Single Expert Witness”. Mr Cairns interviewed the mother six times between December 2014 and April 2015. On two of these visits he also met with J, and on two of the visits he also spoke with the mother’s sister, [C].

18The views of the two experts were diametrically opposed. For reasons I will give later, I consider Mr Cairns’ assessment is to be preferred. In particular, his findings about the mother coincide with the views I have formed after observing her over an extended period.

19Mr Cairns said the mother initially presented as a “gentle and personable individual”, who seemed “extremely anxious” and “very shy and under-confident”. However, as time went on, Mr Cairns observed that her “emotional presentation and passivity changed”. She was seen to be “easily assertive” with her sister when she was trying to stop her sister telling Mr Cairns something during their interview. She also became “agitated and more forceful” in later sessions when she felt she was being challenged. Indeed, Mr Cairns reported that in their penultimate session, he witnessed “obvious anger” directed at him, which reached such proportions that it was commented on by people in his waiting room.

20Overall, Mr Cairns found the mother to be

an extremely anxious person who has poor insight and social norms that are maladaptive and dysfunctional. Her anger can flare when her narratives or logic are challenged, especially if those challenges undermine her proposed status as a victim of others actions or happenstance. Furthermore, to maintain a sense of order in her life she maintains these norms through a process of poor critical thinking and avoidance of contradictory information.

21Mr Cairns went so far as to say that he believed that the mother “invents accounts to be able to continue to avoid contexts she cannot cope with”. He supported this by reference to his own dealings with the mother. He found the mother’s “anxious presentation concerning and her logic difficult to follow”, which explained why he had to spend much more time with her than with the father. Mr Cairns concluded that the “basis for [the mother’s] convoluted logic appear to be confirmatory biases due to a lack of critical examination of her beliefs or appreciation that her views and beliefs were a perspective, not a foundational fact”.

22Mr Cairns also found that the mother’s “bias towards favouring her mother’s judgments and accounts of her faith were apparent in numerous ways and examples”. This was particularly apparent in the mother’s description of the “rebellion” of family members against her mother’s authority. Mr Cairns described the mother’s belief systems as being “extremely conservative, seemingly as influenced [by] her mother” which “force her to engage in logical processes that must ignore contrary evidence and, thus, lack critical thought or reflection”. In his oral evidence, Mr Cairns was at pains to point out that he did not attribute the mother’s illogical belief system to her religion but rather to her upbringing.

23After speaking with the mother’s sister C, Mr Cairns concluded that the mother’s family had “unusual” family norms, demonstrated by “logical biases and contorted reasoning”, and he noted C’s ability “to reach strong conclusions with seemingly limited evidence or basis”. Mr Cairns expressed the opinion that “it is likely that the manner [the mother] and her siblings have been taught to reason and cope has led them to having significant difficulties in managing the ‘outside world’”. In making this observation, Mr Cairns referred to the fact that, despite their highly conservative upbringing, three of the six children had left the maternal grandmother’s home prior to age 15, and that:

three of the five daughters have had children with a number of different men and none of them have maintained romantic/committed relationships with those men. Lastly, of the two females who have not had children, one has left the faith and did not speak to her mother for two years and the other (32) still lives with her mother.

24[Ms M] is the 32-year-old sister of the mother. At the hearing on 1 June 2016, she provided a spectacular example of the reasoning processes evident within the mother’s family when I acceded to the mother’s request for Ms M to give evidence of what sounded would be a fanciful description provided by J of the father’s home.

25Ms M described a conversation she had with J at around 8.00 pm on 19 May 2016, when J came into Ms M’s bedroom to play with Ms M’s pet.1 As the following transcript extract of my questions of the witness demonstrates, Ms M and her family were greatly troubled by what J told them. (Their concerns were no doubt heightened by the fact that J had told them another story around Christmas 2015, which they also believed, about J having awoken at her father’s home with her hands and feet tied, and how she had to walk around tied up with rope, playing the “doggie game”.)

THE WITNESS: … And then she proceeded to tell me that she had two bedrooms. She said “You press a button and then the wall opens up and you go into a closet”, to which I said “You mean a bedroom?” and she said “No, a closet, and then you go up a lift”. She goes “And my bed is in there. That’s the secret room. There’s other beds in there for her friends”. She said that “They get into their like swimsuits, go for a bath ‑ ‑ ‑

HIS HONOUR: Get into their swimsuits. Yes?‑‑‑Yes. Or togs. One of the two.

And get into the bath, did you say?‑‑‑Yes, bath.

Yes?‑‑‑And if they want something to eat or drink, they press a button and then [the paternal grandmother] brings them the food.

Who does?‑‑‑ [The paternal grandmother].

Yes?‑‑‑At that point, I said “Okay. I think we should tell your mum”, so I walked into my mum’s room, which my sister was in there with you, and I said “(indistinct) [J] wants you”.

[J] wants to ‑ ‑ ‑?‑‑‑[J] wants to tell you something.

Yes?‑‑‑So [the mother] came back into my room and then we got [J] to repeat what she had told me to [the mother].

And did she?‑‑‑Yes. But this time with a lot more detail.

And what was the detail?‑‑‑Just things like some of the names, which – a lot of – there was so much information that I can’t recall everything, but [J] did mention a couple of names with the girls, their age. She also mentioned about her father sleeping in the shed. She also mentioned about pressing a button, you hold your hand, it scans and there’s also names on the side.

Pressing a button and it what, it scans, did you say?‑‑‑If you put your hand on the wall it scans ‑ ‑ ‑

Yes. Okay?‑‑‑‑ ‑ ‑ and then there’s names on the side.

On the side of the wall?‑‑‑Yes, yes. And the conversation after that was fine. We went out into the kitchen and I noticed that [J] still wanted to tell me some more stuff, so I said to her “Is there anything else you want to talk to me about?” and she said “Yes”, so it was just me and her that went back into my room.

Yes?‑‑‑And she said to me that her father has punched her in the face and she proceeded to get both fists to the side of her face and go like that.

And then punched herself or (indistinct) ‑ ‑ ‑?‑‑‑Yes. She proceeded to show me ‑ ‑ ‑

‑ ‑ ‑ she was punching herself?‑‑‑Yes.

Yes?‑‑‑And then she proceeded to tell me that her father gives her needles.

Did she say where or did you ask her?‑‑‑I asked her.

And what did she say?‑‑‑She pointed to her thigh and then to her face. She continued to say that it is ‑ ‑ ‑

I beg your pardon?‑‑‑‑ ‑ ‑ very, very scary.

She continued to say what?‑‑‑That it was very, very scary.

Yes?‑‑‑She also described what it was like receiving the injection. That - there was just so much information, I can’t remember what she said. I just said “Thank you for telling me” and then the conversation stopped.

What did you do after that?‑‑‑I was pretty much a bit in shock really. It’s a lot of information to receive on one night. Sorry, I just remembered. I said to her “Does [the paternal grandmother] know about this?” and she said “Yes”.

Yes. Then what happened?‑‑‑Yes. We came out of the room and we proceeded to get on with the night.

And what did that involve?‑‑‑I think finishing up with tea and trying to get [J] off to bed.

Did she seem distressed when she was telling you about this?‑‑‑Very, very much so. I didn’t really comfort her very much because I was still ‑ ‑ ‑

I beg your pardon?‑‑‑I didn’t comfort her as much as what I probably should have, because I was trying to absorb what she was telling me.

And what happened next? You finished up the night, and did you tell anybody else about it?‑‑‑I can’t recollect if I did tell mum or not, but later on ‑ ‑ ‑

Well, was she there?‑‑‑She was in her room. Yes.

Did you tell anyone else?‑‑‑I think I must have told [the mother], but I actually can’t remember.

Well, she was there for part of it?‑‑‑Yes. She was there for the – sort of the second half, but not for the punching or the needle conversation. That was just me and [J].

Did you tell anyone outside the family?‑‑‑I don’t – I don’t think so.

Did you tell the police?‑‑‑Yes, yes. Sorry. The police and Crime Stoppers.

So when did you – who did you tell first?‑‑‑The police. I called them a couple of hours later. It was getting close to midnight.

And do they express any interest in taking the matter further?‑‑‑Initially, when I made the report to the police over the phone I asked to be anonymous and he didn’t really want to take my report, but he said it was on a voice recording.

Did you remain anonymous during that call?‑‑‑I just gave my first name.

And then – so that was a report to Crime Stoppers over the telephone?‑‑‑Sorry. No, that was – that was the police.

That was the local police?‑‑‑Yes.

Okay?‑‑‑Close to midnight Thursday night.

Okay. And then when did you contact Crime Stoppers?‑‑‑I don’t have the date for that, but it could have been a couple of days later.

And were you anonymous doing that as well?‑‑‑I believe so. I think, if anything, I just gave my first name.

And did they say they would do anything?‑‑‑Yes. They said that they would look into the report that I have given to the police.

All right. Have you heard anything further since?‑‑‑No.

Do you know of anyone else who has been to the police about it?‑‑‑I think [the mother] may have been, on the part that she heard from [J].

Did – you know whether [the mother] was there to hear the bit about there being a lift in the house?‑‑‑Yes. Well – because when I went and got [the mother] from the room and said “[J] needs to tell you something”, [J] was able to tell [the mother] what she had told me, but in more depth.

All right. And is that the end of the information you have in relation to that incident?‑‑‑Yes.

All right. Do you have any other questions?

[WILTON], MS: Were the police going to do anything after you phoned them? Were the police going to do anything?‑‑‑Yes. They said they would be out at 8 o’clock in the morning and then yes, they didn’t come.

HIS HONOUR: That’s the local police?‑‑‑Yes.

[WILTON], MS: Did anyone else go down to the police station that day? The next day, when the police didn’t come?‑‑‑Yes. I think mum did.

Do you know the outcome of that?‑‑‑Not off by memory…

26The extent to which J’s remarkable story had been believed by the mother’s family was explored under cross-examination, as appears from the extract below of the evidence of Ms M:

BERRY, MR: When she started telling you about pressing a button with a wall opening up, did you sit back and think, this is going to be a good, imaginative, creative story from a young child, and you this is going to be interesting, with a pressing a button and a wall opens up. Did you think that?‑‑‑I didn’t know where the story was leading to at that time?

Well, it led to a lift, as I understand it, and ‑ ‑ ‑?‑‑‑I know. I was there.

‑ ‑ ‑ you press a button for food. Is that right?‑‑‑Later on.

That’s what was said, wasn’t it?‑‑‑yes.

And you thought [J] has got a very good imagination. That’s what you thought, didn’t you?‑‑‑No. You can’t tell me what I thought.

I’m asking you, “What did you think”. You thought [Mr Wilton] must have an amazing house. Is that what you thought?‑‑‑I was just trying to listen to what my niece was telling me.

Yes. But why are you – I presume you’re telling the court about it, because you think it’s really significant. Very important that [J] pressed the button and food appeared or she pressed a button and a wall opens up. You think that’s really important, do you?‑‑‑This is what [J] conveyed to me ‑ ‑ ‑

Right?‑‑‑‑ ‑ ‑ and I am conveying [J’s] story.

Okay.

HIS HONOUR: I beg your pardon?‑‑‑This is what [J] has conveyed to me and I am just telling her story.

But you believed her story?‑‑‑Yes.

BERRY, MR: When [J] described these events to you, your reaction to her description was you believed the accuracy and truth of what she was telling you. Is that right?‑‑‑Yes.

Thank you?‑‑‑When you gave the evidence about “You put the hand on the wall and it scans”, is that “You put your hand on a wall” is like an electronic scanner of your hand or your palm print?‑‑‑Again ‑ ‑ ‑

Is that how you understood it?‑‑‑Yes.

Okay. What was [J]’s demeanour to you when she was telling you about this part of the story, when she was talking about pressing a button with walls opening up, a lift, swimsuits, pressing a button for food, [the paternal grandmother]? How was she ‑ ‑ ‑?‑‑‑Like it was a part of her every day life.

Pretty matter of fact? Yes. Unemotional? [There was a long pause at this point.]

HIS HONOUR: He’s waiting for an answer.

BERRY, MR: I’m waiting for an answer?‑‑‑Yes. I know you are. [There was a further pause.]

Are you still thinking about the answer?‑‑‑Yes.

How much longer do you need?‑‑‑Sorry. Can you repeat the question again?

You said “She said it like it was part of her every day life” and I said “Matter of fact? Like a matter of fact?” and you said “Yes” and I said “Unemotional” and you didn’t say anything for quite a few seconds, so was she unemotional when she gave you those words?‑‑‑I don’t want to use the word, “unemotional”. She was telling me a part of what was part of her every day life.

How did she present to you when she was telling you that part of the story? What did you infer about her internal feelings when she was telling you that part of the story? Was she upset, was she sobbing? What was she presenting like?‑‑‑Initially, reserved, and then when I went to go and get her mother, I could see the hesitation of not wanting – but she feels safe ‑ ‑ ‑

Not wanting – not wanting to ‑ ‑ ‑?‑‑‑‑ ‑ ‑ to ‑ ‑ ‑

‑ ‑ ‑ tell her mother?‑‑‑Yes.

And did she get more emotional or upset when her mother came in?‑‑‑No. She was all right.

She was all right. So was she the same in her demeanour when she was talking to you as when she was talking to you and her mother?‑‑‑Yes. Pretty consistent.

So when she was telling you about pressing a button and a wall opening up, she was presenting to you in the same way as when she was telling you about her father punching her in the face and giving her needles. Is that right?‑‑‑No. It’s two separate conversations.

All right. So the next conversation, tell me more, you said her father punched her in the face, her father gives her needles. Did her demeanour change with that part of the conversation?‑‑‑Yes. It’s actually very emotional to talk about.

Okay. Well, please talk about it. Was there a change in her demeanour between the first part ‑ ‑ ‑?‑‑‑Very much so.

‑ ‑ ‑ and the second part?‑‑‑She is very, very scared.

Right?‑‑‑Her body language, her facial expressions, everything.

And her mother was present when this conversation occurred?‑‑‑No. I’ve already said she wasn’t present.

Right. But she repeated this to her mother, did she?‑‑‑No.

No. She only told you?‑‑‑Yes.

27The mother also gave further evidence on 1 June 2016. She said she believed what J had said about her father’s home. She firmly stated that the father was a past, present and future threat to J’s safety.

28Further submissions were made after the close of the evidence on 1 June 2016. Senior counsel for the father submitted that the new evidence demonstrated not only that J was living with a dysfunctional parent, but with a parent who has a dysfunctional world view. During the mother’s submissions that followed, I asked her what weight she considered I should place on the evidence her sister had just given. She responded by stating repeatedly that she believed that what J had said about the father’s home was true, and that there was too much detail in J’s story for it not to be true.

29The mother took J to the doctor on the day after this “revelation”. The mother told the doctor what J had said about having a “special room” in the father’s house and about being given needles. The mother told the doctor that J had asked her to “pray to [God] to [kill] dad”. The mother also reported to the doctor that the police had been informed about J’s statements and that they were starting an investigation.

30The maternal grandmother displayed much the same distorted thought processes as those evident in her daughters. The same could be said of the mother’s two main supporters who gave evidence, albeit they were of seemingly greater intellect, and no doubt were motivated in part by their understandably dim view of the father’s atrocious behaviour.

31Another troubling aspect of the mother’s personality is her conviction, which is almost certainly without any foundation, that she is under surveillance and that her home has been entered by intruders. The mother’s counsel conceded that the mother is “hyper vigilant and highly anxious and maybe even [has] a tendency to paranoia”.

32The mother’s fears pre-date her marriage to the father, but since the separation, she has seen unexplained hand and foot prints, cigarette butts, debris, oil stains and misplaced pot plants. She has also heard tiles being moved and drilling in her roof, and found nuts and bolts removed from her gate and special locks removed from the manhole. The mother is convinced people have been entering her property and that they mean her harm. In 2015, the mother was convinced that someone had inserted needles in her hand while she slept, and said her hand was stained with a dye that one of her supporters identified as an antiseptic. The mother is also worried when she is out driving. She has a camera recording as she goes along, with J in the car, and she calls out the registration numbers of cars that may contain people who intend her harm.

33The mother claimed that she was “just being diligent” when she videotaped her neighbours because of their “unusual behaviour” in pointing at her house. She explained that she had previously reported to the police “horrific” screaming from what she thought sounded like a little girl, coming from the direction of the neighbours’ home in the early hours one morning (although she was not sure that the noise actually came from their home).

34The Mercy Care worker who tried to help the mother over an extended period gave evidence of the mother’s concerns about intruders. She recalled that the mother was so concerned about J sleeping at the other end of her house that the mother had J sleeping on a mattress on the floor in her bedroom.

35The mother’s fears are shared or stimulated by her two close associates: [Ms O], who said she had information about the proceedings that had mysteriously “just gone [missing]”; and [Ms D], who volunteered a story about a “very distinguished gentleman” whom she suspected of stealing her affidavit from the boot of her car.

36It seems the mother’s fears have been passed on to J. I accept that on 4 July 2015, while J was having difficulty going to sleep, she told the father there had been intruders in her mother’s home, which her mother knew to be the case because “Mummy smelled cigarettes in the house”. I accept that J asked the father if he could “stay at mummy’s house to protect me”. She also told the father that “Mum gave me a knife to keep in a special spot, so if somebody comes I can use it”.

37In dismissing the mother’s concerns as likely to be fantasy, I have not overlooked the bloodcurdling phone messages she once received, which she believes were left on her phone by a woman she encountered when living in a refuge. Although her affidavit implied the father might have been responsible, this turned out not to be so. While there is no doubt these calls were made, the matter of additional concern was that they were replayed within J’s hearing.

Impressions of the father and his family

38Mr Cairns met with the father five times between October 2014 and March 2015. Mr Cairns saw the father with J on one occasion, and with the father’s mother on another.

39Mr Cairns commented on the father’s “natural and respectful relationship” with his mother and noted the contrast between the mother’s family and their history, and the cooperative arrangements within the father’s family and their success in work and relationships.

40Mr Cairns reported that the father “appears to have sound insight, although he is an unsubtle and pragmatic man [who] may, from time to time put others off”. While describing the father as “affable”, Mr Cairns said that the father was also frustrated by events during the proceedings, and thus the father was critical of Mr Burke’s report and the conduct of [Ms S], who was a psychologist engaged for J by the mother, who refused to speak with him about his daughter’s therapy.

41Mr Cairns observed that over the course of the interviews, the father’s “frustration moved from exasperated to more aggressive or despondent in tone”. Nevertheless, he said that the father

presented as highly pragmatic and a surprisingly ‘up beat’ person given the context he was in and his sense of injustice. He appeared to largely be focused on [J]’s welfare and the belief he was doing his best to help her protected him to some extent from getting too negative. He was clear in his answers and able to give clear lines of reasoning for his actions and statements.

42Mr Cairns also noted the father’s reluctance to criticise the mother, other than to state his concerns. He said the father believed that the mother “came from a dysfunctional home and he wanted to help her as best he could but his main motivation was to make sure if [J] was safe in her care”. Mr Cairns also said the father “cares deeply for [J]’s welfare at the emotional and developmental levels”, and he noted that most of the father’s concerns about J were consistent with his own concerns.

43Mr Cairns reported that while the father presented as “emotionally even and reasonable”, he did not present in the same way “in writing”. He said that the “lack of context and poor writing” in the father’s communications “made it difficult to follow his points”, and that on many occasions he needed the father “to clarify what it was he was trying to communicate”. Mr Cairns also observed that, as time went on, and the father spent longer periods without seeing J, he “became more emotional on email”. Mr Cairns referred in particular to some “highly aggressive” emails the father had sent to the proprietor of the supervision service.2 Mr Cairns believed that the father’s written communications were indicative of him “no longer being able to emotionally cope with the situations at hand”.

44 Overall, Mr Cairns concluded that the father presented

as a logical and very pragmatic and straightforward man. His answers were short and direct and I could see how to some he could appear quite blunt as he was not sophisticated in communication and was quite open about not considering himself to be very capable in that regard. As time went on this bluntness became more aggressive and I note that the aggression in the emails was made worse by his writing style and tendency to write, seemingly, without editing. …

…

Whilst I [cannot] prove it, the indications appear to be that [the father] is a very straightforward and blunt man with little insight into how his actions may appear to those with a different point of view. Upon reflection he can grasp this but he tends to assume everyone is a straightforward as he is or shows little insight into how he is presenting to them. ...

45In his oral evidence, Mr Cairns again said that he had found that the father lacked insight. When questioned about this, Mr Cairns explained how he had discussed with the father his behaviour in sending emails to the proprietor of the supervision service. Mr Cairns said that while the father realised he had behaved inappropriately, he did not appreciate how his behaviour had damaged the manager’s view of him. As an another example, Mr Cairns referred to the father’s contact with Ms S and the father’s inability to reflect upon the fact that his insistence in finding a way to make contact with her, when she refused to take his calls, would be seen in a negative light.

46Mr Cairns nevertheless reported that the father’s

family and work history lends further support to my conclusion that he is likely quite a stable straightforward man in general but may lack insight into more politically and socially dysfunctional context. Firstly, his family history presents as stable and functional. I note that both his parents are still married and he remains on good terms with them … Secondly, he has been successfully employed throughout his adult life and maintained a level of income and saving that has allowed him to own his house by a young age. …

47Mr Cairns went on to say:

Given [the father’s] concerns about [the mother’s] mental health and issues within their relationship, plus his frustration with not being able to see [J] [it] is significant that he largely stayed evidence based and critical in reasoning throughout the assessment and was focused more on finding out if [J] was safe as opposed to proving she should not be with [the mother].

48Mr Cairns said he suspected that if the father was allowed to have time with J, and if he felt she was secure in the mother’s care, the father would accept the mother’s “unusual norms and actions”.

49While I find that the mother’s evidence simply cannot be relied upon because of her disordered thought processes and her attempts to spin everything to support her case, I also consider that the father’s evidence requires very careful scrutiny. Not only did he try to present himself in an overly positive light, he was also capable of embellishing stories to make the mother or her associates look bad. For example, see Exhibit 76 and the claims he made to the police on 24 February 2016 about Ms O driving into him in her car.

The parties’ conduct during the marriage

50I find that the mother’s family did not attend the parties’ wedding because the mother did not want them to attend, in part because she was worried her sisters would cause a scene by expressing their opinions against the marriage. As it turned out, the day was marred by the mother’s own immature behaviour.

51In any event, the marriage seemed destined for failure. Both parties are very immature for their ages – and they were, of course, much younger when they were married. Neither has the skills needed to communicate respectfully in an intimate relationship, and as the father acknowledged, they would commonly just separate when problems arose, rather than seeking to address their conflict.

52The parties would often call in the church [Ministers] to help deal with their disputes, including matters touching on the most intimate aspects of their lives. As one example of their many interactions with the Ministers the parties attended a “meeting” in 2009, which had been called because the father wanted to “confess” that they had been having pre-marital sex. The mother said that one of the Ministers repeatedly asked her if there was “anything we should know about”. The mother said:

I remember feeling panicked as I did not feel I could answer that question truthfully without repercussion from [the father]. I recall that I could not catch my breath, and everything went black. I returned to consciousness with the [Minister] waving his hand in front of my face and calling my name. ...

53Notwithstanding the regularity with which the Ministers were mentioned in the proceedings, none of them were called to give evidence. In fact, I was told by counsel for the mother that they refused to participate in the proceedings, and that she was instructed not to subpoena them. This is a matter of grave concern since, potentially at least, these people, who take it upon themselves to be involved in the personal lives of others, could have provided the court with evidence to assist in making the decision about a young and very vulnerable child.

54The mother’s recollection is that the father abused her physically, sexually and emotionally, and that he was highly controlling. It is impossible to tell how much truth is in the mother’s allegations, given she is such an unreliable historian. However, I consider that the mother’s erratic behaviour was a contributor to the volatility in the relationship. Apart from the problems associated with her disordered thought patterns and quick temper, she often conducted herself in a very odd way during the marriage, including sitting in a cupboard or standing in a corner for long periods, and roaming the streets at night.

55I accept there was some truth in the father’s evidence that the mother

regularly went through the man hole into our roof. She accused me of having her under surveillance and also accused me of being an international drug dealer (she told me she reached this conclusion because I had stamps and envelopes). [The mother] alleged that our motion sensors were cameras and that I had filmed her and sold her images on the internet including us having sex. …

56In cross-examination, the mother accepted that she had asked the father whether the red lights in the motion sensors in his house were cameras, but she denied accusing him of selling videos of her on the internet or of being an international drug dealer.

57The mother attended counselling for a time, but it seems the counselling proceeded on the basis of acceptance of her narrative of the father’s behaviour, and therefore did not address the many other issues contributing to the unhealthy dynamic between the parties.

58The father would also have been a contributor to the volatility of the relationship given his great propensity to be blunt and aggressive, and his primitive communication skills. I am satisfied that he often behaved in an offensive and bullying manner, causing the mother to feel demeaned and threatened. However, save for one occasion when the father reacted in surprise and self-defence, there appears to have been little physical violence in the marriage, except for the pinching, scratching and slapping in which the mother may have indulged.

59The mother’s affidavit evidence of the father’s violence was grossly exaggerated. It is much more likely that she was truthful when she told a psychologist interstate in 2011 that on the one occasion when the father had “struck out” at her, it was probably “an instinctive or reflective act” after she had “grabbed him by my nails [and] hurt him accidentally”.

60I accept that the father had a problem with alcohol when he was younger. This is evidenced by his admissions and driving record, and his conviction for a drink-related assault on a [person] at [an event] in 2006. However, the father has had no drink-driving convictions since 2009, and I am satisfied he no longer drives when he has been drinking. I am also inclined to accept that he now does not drink to the extent that it would impact on his ability to look after J.

61I consider it likely that the father viewed pornography more often than the two occasions when he said he looked at some “soft core” pornography. The maternal grandmother supplied the police with a USB containing links to pornography websites that the mother had downloaded from the father’s computer. The grandmother deposed that the police “later confirmed what was on the USB to be hard-core pornography, [not] soft-core pornography”. However, the police report states that the investigating police officers

had a look at the files obtained on the thumb drive, none depict any act of a sexual nature that involves children or any material that would in general terms be ‘offensive’ … The particular website the pornographic files come from on the thumb drive is ‘sexandsubmission.com’…

62The name of the website would suggest that it might contain material that many people would consider “offensive”, but the matter of most significance is that there is no evidence that the father has ever been interested in child pornography. In arriving at this conclusion, I have not overlooked that the father gave contradictory evidence about socialising with a work colleague who was accused of viewing child pornography.

The sexual abuse allegations

63Family Court judges are regularly required to consider the probabilities of whether a young child has been sexually abused. Their decisions are now routinely subjected to criticism by interest groups, including self-appointed “advocates” for children (when sexual abuse is not found) and men’s groups (when sexual abuse or a risk of same is found). Whether such criticism is warranted is for others to determine; although see the article by the Honourable Richard Chisholm, ‘Misrepresenting the Facts About Family Law Cases and Mental Illness: A Brief Response to Elspeth McInnes’ (2015) 22(3) Psychiatry, Psychology and Law 474, which shows how judgments have been grossly misconstrued.

64Public discourse about these types of cases has now sunk to such depths that some judges feel the need to state what should otherwise be taken for granted. Following the lead of those judges, I adopt these remarks of Murphy J in Thornton & Thornton [2015] FamCA 92, where his Honour recognised the gravity of the sexual abuse of children:

9.The notion that children might be used … for the sexual gratification of adults is wholly repugnant to any sane person. To the extent that it is possible (or desirable) to identify or quantify that, it might be said that particular repugnance attaches – and should attach – to a parent of a child using or exposing their own child in that manner. Expressed in terms familiar to the Family Law Act 1975 (Cth) … the conduct is as complete and repugnant an abdication of parental responsibility as can be imagined.

65The psychologist who the mother saw in 2011 (while she was living with her father) recorded the mother as saying that “there was sexual interference in her father’s early years with the other boys in his family and this has caused difficulties throughout his entire life”. She told the psychologist that she felt her father was “a very angry man” as a result. The psychologist also reported that the mother said “there was domestic violence by her father to her mother in the early stages but later on there were just arguments sans the violence”.

66Under a heading “allegations of sexual abuse” the psychologist reported:

I specifically examined [the mother] for this she indicated that that one of her sisters, at the age of 15, had started to rebel at home and had moved to her father’s house. As a result of his inability to provide effective parenting and discipline, her sister got into some difficulties. At one stage she went out, got drunk and during this time she was raped and they video taped it. She went to a psychologist for help, then returned to her father and became pregnant to her boyfriend.

On another occasion and a couple of years later, her under-aged sister went out with a work group and believes that her drinks was spiked. Although she has never spoken about it, [the mother] was sure that her sister experienced some sort of sexual assault she had nothing further to add.

Of her own experience, she was adamant that she had never been sexually abused and never been exposed to any improper sexual advances by anyone in her life.

67The father recalls the mother telling him that her father was sexually abused by his own father, and that her sisters had been sexually abused by a family member. I accept something of this sort was likely to have been said. I also consider it likely that the mother told the father while she was interstate, “I’m going to tell the judge you want to molest your daughter”.

68The mother has been alleging since 2011 that J has been sexually abused on an ongoing basis. Although on recent occasions the mother has said she has only been telling me what she has observed and that she is not accusing the father, this is disingenuous, as there is no doubt she wants me to accept that the father has persistently interfered with J. For example, she claimed that she has smelled and seen semen on J’s clothing after contact visits, and seen a white discharge coming from J’s vagina. She has reported J as being “red raw” after visits and complaining of feeling “sore … down there”. She also reported how J had been masturbating and inserting fingers and objects in her vagina, which she attributes to abuse by the father.

69The mother’s real position was confirmed during her submissions after the evidence closed on 1 June 2016, when she said she believed that J was unsafe in the father’s care and that “the behaviours displayed by [J] have shown me that she has been sexually abused, and that she needs help and she needed help a long time ago”. She implied that the abuse must have been perpetrated by the father because “I haven’t left her with any other [person], besides my mother and a couple of friends”.

70Apart from alleging abuse, the mother claims that the father has drugged J, presumably with a view to abusing her. She even wants me to accept that he drugged J during services at the [local church]. J would sometimes vomit, which the mother believed related to her being drugged. On occasion, the mother would take the vomit to the police and the hospital. The mother also believes that she has seen needle puncture marks in J’s body. In promoting all of these claims, the mother has taken J to doctors, hospitals and to the child protection authority (“DCP”) on dozens of occasions.

71Much of the trial was devoted to consideration of these claims of abuse, but ultimately, and properly, the mother’s counsel conceded that the evidence simply did not support the assertions. Furthermore, neither of the experts was of the opinion that J had been sexually abused by the father, and J resolutely denied during a DCP interview that anyone but she had ever touched her “private parts”. Given these facts, no useful purpose would be served by providing a full chronology of all of the allegations and investigations (although see the time line in Exhibit 25, Exhibit 37 and Exhibit 76, which opened up a brand new front in the allegations in 2016). It is worth recording, however, that the allegations did not commence until September 2011, immediately after the father made allegations to DCP about the mother’s treatment of J. It is also worth recording that on 12 May 2011 and 14 May 2011, the mother wrote in the communication book that she wanted the father to administer creams to J for thrush when changing her nappy, even though the mother now asks me to infer that J had been abused by the father prior to the separation.

72The mother has, since at least December 2011, been persistently told by doctors, DCP, experts and even one of her previous lawyers that there is no evidence to justify her claims, and that subjecting a child to repeated investigation is traumatic and emotionally damaging. Yet the allegations continued to flow. The mother has been conspicuously supported in these complaints by Ms O, who believes she too has smelled semen on J; reported that J had no hymen; and claimed that the opening to J’s vagina was enlarged. She has also seen needle puncture marks on J, although this belief was not supported by the doctor to whom J was taken for inspection.

73By way of example of what J has been put through, the mother attended at [Hospital A] on 9 October 2012 with “multiple concerns” about J being in the care of the father. She described how J was “floppy” after contact visits. She spoke of J being drugged, having a red vagina and having multiple needle puncture marks. The mother also told the staff at Hospital A how it sometimes took her an hour to get J into the car before visits, and that this was an indicator that J does not want to see the father. The Hospital A staff did not find anything to substantiate the mother’s concerns. They reported how they had talked to the mother about the impact on J of the mother’s “stress and anxiety around the visits, the current relationship between the two parents and the contact visits”. They also explained how J “is able to pick up on these stressors”.

74The Hospital A Child Protection Unit had already noted in January 2012 that they were “not confident that [the mother] will be able to retain and acknowledge advice that genital redness is common and can be caused by a variety of factors”. The mother was advised at this time that “ongoing presentations to medical staff requesting examination for sexual harm (without appropriate symptoms) could damage her chances in the family court”.

75Nevertheless, the mother again presented on 9 March 2012, having noted “redness around [J]’s introitus and thought she saw a crack in skin around anus”. J was observed to have “slight introital redness but no overt signs of trauma”. Then on 15 April 2012, the mother presented at [Hospital B] alleging that J was vomiting and may have been given drugs by her father. Then on 26 June 2012, she presented at a doctor again claiming there was bruising on J’s feet after a visit. Although the mother has persisted in presenting J to health professionals, she also does not trust them (no doubt because they refuse to agree with her that J has been abused).

76I am satisfied that the mother and her associates have encouraged J to believe that she been abused or is at risk of sexual abuse from her father. I accept the father’s evidence that when J was about 3 years old, she told him “mum said that you want to have sex with me, what’s sex?”. J also said that her mother had said “bad things happen at dad’s house”.

77On one occasion the mother stripped J of all her clothing, including her underwear, at the front door of the father’s home after a handover and placed the items in a plastic bag. On a number of occasions, the mother claimed that she had in her possession items of clothing which were contaminated with the father’s semen. Notwithstanding very strong advice from a doctor that she should have these items analysed by the police to prove her allegations, this never occurred. The mother’s excuse now is that she was too scared to take the clothing to the police, yet she and her family and supporters have never shown fear of taking complaints and suspicions to doctors, hospitals, DCP and the police. I consider that while the mother continues to try to convince herself and her associates that J is being abused, she realises that scientific examination will debunk her theory.

The father’s time with J and events leading to the recent change of residence

78The mother did not allow the father time with J following the separation, and I accept the father’s evidence that the mother told him he would never see J again. Apart from a one-off visit when J was in hospital, the father was only able to see her after he applied for a recovery order when the mother moved interstate. As J was very young, the father sought time with her for only 30 minutes each alternate weekday and two hours on Saturday and Sunday.

79The parties attended a Child Dispute Conference in April 2011, but the mother would only agree to the father having time with J for two hours each Saturday, to be supervised by the Ministers. In May 2011, consent orders were made increasing the father’s time to six hours each week across three days, to be supervised by the paternal grandparents. Since then, various other contact orders have been made. The requirement for supervision was lifted in October 2011, and a weekly overnight visit was instituted in May 2012.

80Handovers have been supervised since February 2014, initially by Perth Children’s Contact Centre, and then by Safe Balance Child Contact Service. The order in place at the time of trial was that made on 13 April 2015, which allowed J to spend time with the father every weekend from 9.00 am on Saturday to 3.00 pm on Sunday. The handover was to take place at McDonalds in [Suburb D], on the express basis that the mother was to “immediately depart” upon the supervisor’s arrival. The mother did not always leave as ordered, and there were many occasions when she did not ensure that J spent time with the father. Prior to the order of 13 April 2015, the father had not had any contact for almost two months, then he had only one period of contact before the mother then refused contact again, alleging that the father had sexually abused J on the weekend of 18 and 19 April 2015.

81Although problems emerged from time to time, the father’s persistence generally paid off in that he was able to maintain contact with J and their relationship continued to develop. Thus, for example, the reports in the last half of 2015 showed handovers generally occurring without incident, and with J being observed to be “happy and content”. Indeed, apart from a number of cancellations due to illness, the contact supervisor said that up until about December 2015 / January 2016, J was “quite good going to dad” and it was “quite easy” to move her from the care of the mother to the father.

82In December 2015 and January 2016, J became reluctant to attend visits. Although it is difficult to be sure, I consider this may have been related to the fact J was spending time in the home of the maternal grandmother in [Suburb B], where the family was aghast when told by J about being tied up and made to play the “doggy game”. Given that the mother and her family were aware of the father having visited a website related to bondage, and given the way the mother leads J to make statements, this story is more likely to be the product of questioning of J about whether she is ever tied up in her father’s home.

83After these difficulties around Christmas 2015, the contact visits continued without major incident until they came to an abrupt end on the weekend of 26 March 2016. In my view, it is far from coincidental that this occurred in the middle of a fresh police investigation which had been instituted after the mother went to the police in late February 2016, claiming that J had been the subject of digital penetration by a person called “[W]” (which J had told her about when the mother was reading a protective behaviours book to J). The mother linked this to the father by asserting that W was a child J played with when she visited him.

84The father was interviewed by the police about the issue concerning W; however, on 23 March 2016, and twice on 24 March 2016, the father denied to the police he had organised for J to play with a child called W. Yet in his affidavit sworn on 15 April 2016, the father said that J had three playdates with a child called W, who was the 6-year-old granddaughter of a work colleague. He claimed that the children were always supervised by W’s parents or her grandparents or by him, and he had never seen any inappropriate play or behaviour of concern between the girls.

85The father was not cross-examined about this discrepancy in the evidence, as the mother was self-represented at the hearing on 1 June 2016. I did not observe the discrepancy in his stories until after the hearing when I was studying the exhibits tendered, including the lengthy Exhibit 76 which contains full details of the police investigation. In any event, I note that the police did not proceed with the matter given the “person of interest” was 6 years old. I observe also that the mother told the police on 5 April 2016 that J had informed her, following the contact visit after the mother had reported the matter to the police, that she was not allowed to play with W anymore. Although the issue was not properly explored, I accept there is a possibility that J was correctly reporting to her mother something that occurred with W, given that J has been discovered in inappropriate play with at least one other young girl (and possibly two) when in the mother’s care.

86Whatever might have been happening in the period leading up to the visit on 26 March 2016, I am quite satisfied that the visit would have gone ahead had it not been for the mother deciding to come back into McDonalds (in breach of the court order) after J had been placed in the care of the supervisor, who described J as being “happy and comfortable” and waiting to leave with the father.

87The recording the mother made on 26 March 2016 provides very useful context to the unsuccessful outcome of the visit. It demonstrates not only the mother’s ineffective parenting, but also the way she puts words into J’s mouth. When she was in the car after she had gone back into the restaurant and taken J away, the mother asked J, “Do you feel safe now [J]”, to which J obligingly responded, “Yep”. The mother then asked, “Did you feel safe when we were in Maccas?”, to which J responded, on cue, “I didn’t”. Later in the recording, while still driving, the mother telephoned her mother, who she asked to contact her father to get “some advice”. During the call, the mother described to her mother why she had “had enough” and had decided to walk back into the restaurant. In the process of giving her description she said:

I understand it’s hard mum, but anyway … I’ll talk to you later. I just need you to contact dad, and … this needs to be recorded. I’ll talk to you about it later anyway, I just wanted to let you know [J] is with me. We got in the car, and she says to me, when we got a little bit away, “I feel safe now mum” … then she perked right up, all happy…

88As so often happens in cases such as this, the mother purports to describe a statement made by a little girl as if it has been volunteered, when in fact the words were put in her mouth by her mother. Later in the conversation, the mother prodded J for more evidence by asking, “Is there a reason why you didn’t want to go this weekend?”, to which J uncooperatively replied, “No mum, not really”. This elicited yet another question, “Did you want to go last weekend?”, to which J responded, “Hm, I don’t know”. (The visit on the previous weekend had occurred, but the mother claims that J was being forced to go.) After J tried to change the subject, the mother asked her whether she wanted “to say a little prayer to [God], to say thank you?”. J responded by telling her she could pray for “anything you want”. The mother then said the following prayer:

Dear [God], our heavenly Father we come before you this morning [God] to ask please be your Holy Spirit be upon all that is involved in the situation this morning at hand over. Please [God] help [the contact supervisor] to record accurately what went on and please be able to [God] show the truth of what goes on – what went on please [God] can you help us now and be with us for the rest of the day…

89In the months following, although the mother would usually bring J to the handover, she would then depart with her, claiming that J did not want to see the father. The first handover after 26 March 2016 was marred by an ugly scene involving the mother and paternal grandmother, who was angry when the mother again announced that J did not want to go on the visit. I am satisfied J would have been greatly upset by that argument, and that this would have made her very apprehensive about what would happen at future handovers. However, at earlier handovers, the paternal grandmother had been observed by the supervisors to be “very supportive and helpful”, and had been described as showing “maturity and ability” in facilitating the transfers. Although the incident does neither woman credit, in my view, the grandmother was endeavouring to do what the mother should have done – to ensure J went on the visit the court had ordered.

90The evidence on 1 June 2016 satisfied me that matters had reached a stalemate, and that without strong intervention by the court, the father would not see J again. I was also troubled that the mother was keeping J home from school because J had become frightened her father would come to the school and “steal” her. In my view, the evidence established that J enjoys a close and loving relationship with her father, and greatly enjoys her time with him and his family. I had no doubt that J’s apparent objection to seeing him was related largely to the toxic conduct of the mother and her associates who had, for years, been encouraging J to believe her father had molested her and was a danger to her. The only way to avoid the emotional damage that would be caused from J being brought up in such an environment was to remove her from it.

The law

91The proceedings are governed by the Family Law Act 1975 (Cth) (“the Act”), which makes J’s best interests paramount. The Act was amended in 2012, but many of the amendments do not apply because these proceedings were commenced in 2011.

92In deciding what orders to make, I am guided by the objects of the Act and the principles underlying them, which indicate that the best interests of children are met by:

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

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

(c)ensuring they 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.

93The Act requires me to apply a presumption that it is in J’s best interests for her parents to share parental responsibility equally. However, the presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with them, has engaged in child abuse or family violence. The presumption may be rebutted by evidence that it would not be in J’s best interests for there to be shared parental responsibility.

94The allocation of parental responsibility does not govern the time J will spend with each parent. However, if an order is made for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time, or failing that, “substantial and significant time” with each parent would be in J’s best interests. If either alternative is in her best interests, then I must consider making such an order, provided I have also found the arrangement to be “reasonably practicable”.

95In determining what is in J’s best interests, I must consider the matters in s 60CC of the Act. These are divided into “primary considerations” and “additional considerations”, but the law is well settled that the “primary considerations” do not necessarily outweigh any combination of the “additional considerations”.

96The law to be applied in cases involving allegations of sexual abuse is no different to that to be applied in any other case. However, the High Court has said 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”: M v M (1988) 166 CLR 69 at 78.

The primary considerations

97The first “primary consideration” is “the benefit to the child of having a meaningful relationship with both of the child’s parents”.

98In my view, there would be benefit to J in having a meaningful relationship with both her parents, notwithstanding what I perceive to be serious deficits in their personality and functioning. They are, after all, the only parents J will ever have.

99The mother has been J’s primary carer throughout her life, and I have no doubt there is a close bond between them, notwithstanding the relationship is dysfunctional. The extent to which J’s relationship with her mother will be beneficial to her will depend in no small measure on how the mother conducts herself in the future. I accept the opinion of Mr Burke that if the mother is not able to manage her anxieties adequately, it is likely J will begin to mirror the mother’s conduct in responding to anxiety in maladaptive ways, and that J is likely to repeat behaviours she observes in her mother. I also accept Mr Burke’s opinion that if this were to occur, J could become avoidant in relationships with other people and avoid situations which cause her anxiety.

100The father’s relationship with J is of considerable importance to her. Notwithstanding all of his characteristics which cause me concern, I consider that the father has some qualities as a father which will be beneficial for J. In particular, he appears to have provided a more predictable environment for J, which is confirmed by a rare correspondence in the evidence of Mr Burke and Mr Cairns that J is more comfortable in her father’s care than in the care of her mother. In my view, it would cause great harm to J if she were denied the opportunity to build on her relationship with the father, especially as there is no indication that she would ever be exposed to another male role model. Without such an influence, I consider J would end up being just like her mother and other members of her family. She too would develop social norms that are maladaptive and dysfunctional, struggle to make her way in the world and be likely to have difficulty in forming satisfactory personal relationships.

101The second “primary consideration” is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

102Mr Cairns reported that “after much probing”, the mother explained that she believed the father was a “sexual abuser”. Mr Cairns believed that the claims of sexual abuse were “highly questionable”, and that the mother’s narrative about the basis for her belief showed “a disordered way of reaching conclusions but also a possible example of constructed narratives”. Mr Cairns noted a theme in all the mother’s arguments “where fatigue, poor luck or some other factor continued to interfere with her ability to present objective evidence of her narratives”. Unsurprisingly, Mr Cairns cited in this respect the failure of the mother and Ms O to make arrangements for the testing of J’s clothing which they alleged had smelled of semen after contact visits.

103When Mr Cairns pointed out to the mother that things she considered were indicative of sexual abuse could be explained by normal childhood development, he said the mother

became quite agitated and stated “I know what I know, I don’t care what you or the [Ministers] say!”. Given all I had done is point out her fears were not necessarily based on any clear evidence one would imagine she would at least consider tempering her judgements and, possibly, be relieved. Yet, she became even more belligerent and included the comment about the [Ministers] in her church. Given that I had not mentioned the [Ministers] I imagine they have also raised alternative views to her and this statement was directed at them too.

104Mr Cairns said that the mother’s insistence on trying to prove that J has been sexually abused “has placed J in situations that are invasive and harmful. Her continued determination to seek out such investigations, in spite of feedback to the contrary from objective professionals, can be considered abusive if it were to continue”.

105 I consider that the mother’s ongoing preoccupation with her fear that J is being sexually abused by the father requires strong steps to be taken to ensure that J is not exposed to psychological harm from being subjected to this insidious form of abuse. It will also be beneficial for J to be freed of the psychological harm that will almost inevitably flow from living in an environment where she is encouraged to believe she is at risk from intruders and others who wish her or her mother harm.

106I do not consider that J is at risk of harm in the care of the father.

The additional considerations

107I turn now to the “additional considerations” which must be taken into account.

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

108J seems to be quite an astute young lady. I was struck by the fact that in the recording her mother made on 26 March 2016, 5-year-old J was heard saying to her mother, “I’m doing colouring in and you’re doing your make-up, win-win”.

109Across J’s three sessions with Mr Cairns, the only consistent statement she made was that “mum is mean”. In the first session, J said “mum is mean all the time” and “dad is nice but mum is mean”. On the only occasion that Mr Cairns was able to get J to explain why her mother is “mean” she responded by saying, “I say mum be nice! But she won’t listen”, followed by, “mum be’s mean all time to dad”. When Mr Cairns asked J if her father was mean to her mother, she responded, “daddy not say things about mummy”. J also told Mr Cairns that her mother gives her time out “all the time”, whereas her father talks to her when he “tells her off”.

110At the second session, when accompanied by the mother, J said, “mum gets angry and I tell her to stop being naughty”. Mr Cairns commented that:

Tellingly [J] stated “mum gets angry all the time” immediately followed by “she says I am angry and grumpy” indicating that her mother blames her for things she believes her mother causes. Of note though, [J] reports she has fun at both houses and likes living at her mother’s house as she gets to see ‘[Aunty R]’ [sic].

111Mr Cairns reported that, at the last session, when again accompanied by her mother, J made similar statements, but Mr Cairns noted with interest that J said

she “likes going backwards and forwards” in relation to seeing both parents. Yet, my understanding from [the mother] is that only the weekend before she allegedly would not transition to [the father]. I also noted that she stated “mum is mean”, followed by a statement that “[the mother’s sister] is not mean, daddy is not mean” by way of showing evidence of comprehension of the statements regarding her mother.

112Mr Cairns said that he could find no influence that had been exerted on J to state so consistently that her mother was “mean”, and he observed that she “developed her own supportive rationale at a language level that was age appropriate”. I accept there is a possibility that J’s view that her mother is “mean” could have been influenced by statements her father has made, but the way her view was stated makes it seem more likely to me that her opinion reflects her experience of life with her mother. I note also that the contact supervisor reported that on 13 June 2015, J said directly to her mother, prior to the father’s visit commencing, that she was “mean” to the father, even though at the time, the child was resisting leaving her mother’s care to go to her father.

113Mr Cairns said that J would not give him any significant detail about where she wanted to live, but seemed to be aware of the conflict between her parents. If pushed by Mr Cairns on the topic of where she wanted to live, J became “avoidant”. He said it was clear that J enjoyed moving between the homes of the parents but “has some issues living with her mother”. Mr Cairns doubted that J had the “insight, or willingness, to consider living arrangements other than what she was familiar with”.

114The mother pretends she is encouraging contact and mouths words to make it look as if she is, but in reality she is implacably opposed to J seeing the father and simply wants to go through the motions. Her evidence about her alleged efforts to ensure J sees her father do not establish in my mind that J does not want to see the father, but instead demonstrate her ineffective parenting. This is to be contrasted with the father who, on the occasions J did not want to return to the mother, was seen by the contact supervisor to be setting appropriate boundaries, and gently but firmly ensuring that J understood she needed to go back to her mother (see Exhibits 56 and 59).

(b)the nature of the relationship of the child with:

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);

115J has a good relationship with her father. I further find that her apparent reluctance at times to visit him is not the result of any deficit in their relationship, but rather is a manifestation of the negative influence of her mother and her mother’s family and friends. In arriving at this conclusion, I have had regard in particular to the evidence of the contact supervisors and Mr Cairns. I also note that at a DCP interview in September 2014, when playing the “three houses” game, J said she would like to put her dad into “the House of Good Things”.

116Mr Cairns noted that on the last of his three meetings with J, she did not want to separate from her mother, but once forced to do so, J “calmed immediately”. Mr Cairns said that he suspected that the level of attachment which the mother and her sister believed that they were witnessing when J was reluctant to leave the mother “is more consistent with anxiety and insecure attachment than fear of [the father]”. Mr Cairns said:

When a child has a volatile and reactive parent who cannot be predicted (as I found [the mother] to be) they often will seek to maintain a close relationship with them as it provides a safer more predictable context. My line of evidence for this is not only [J]’s reports but also watching her with the toys … I did not witness this sort of behaviour or fear with [the father] and [J].

117Mr Cairns opined that the relationship between J and the mother is “more complex” than her relationships with her father and her paternal grandmother. He observed that J “appeared more anxious when with her mother” and gave an example he had observed in his own office. He predicted that if the conflict continued, “[J] will likely develop anxiety and struggle to adapt to natural social contexts and form functional attachment”. Mr Cairns did not suggest that J’s unwavering assertion that her mother was “mean” meant that she did not have fun with her mother, because he suspected that she did, and he observed them playing together seemingly without concern. However, he also said that he believed J was correct when stating that her mother “would not listen to her and was prone to aggression”. This finding is in accordance with the father’s evidence about J complaining to him repeatedly that her mother is “angry” with her and hits her.

118J has a good relationship with her paternal grandmother. Although the evidence is not as clear, there is no reason to doubt she also has a good relationship with her paternal grandfather and her maternal grandmother. It is unlikely J has any relationship of significance with her maternal grandfather (who lives interstate and with whom she lived for just a short period after the separation of her parents).

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

119I accept Mr Cairns’ assessment that the father would promote J’s relationship with the mother if she “can be shown to provide a safe and developmentally appropriate context for [J]”. I also accept Mr Cairns’ assessment that not only will the mother not promote the relationship between J and the father, but that she will actively undermine it. I agree with Mr Cairns’ opinion that “this is partly due to [the mother’s] conclusions about [the father] but it is also because she seemingly has no example in her family, at multiple levels, of how to have a male figure function at the father or partner level”.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

120This is a most significant factor, given that J has been used to living with her mother and has only ever spent short periods with her father. The short-term impact of a change of residence for J is likely to be traumatic given that the mother and her associates have portrayed the father as a person to be feared. Nevertheless, the experts agree that J is more comfortable in her father’s company than in the company of her mother, and I accept Mr Cairns’ opinion that she is likely to react well to living with her father. This is not to suggest that there will not be a very difficult period of adjustment for J.

121J will probably see less of her maternal grandmother and aunts now that she is living with the father, but in my view, that will be to her advantage. As a result of the change of residence, she will see more of her father’s family. Having had the opportunity to see some of them give evidence, I consider that would be to J’s advantage.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

122There have been considerable difficulties and expense associated with the contact arrangements. These arise in part from the mother’s decision to move to the far north of Perth when she was under an obligation to live within 25 km of Suburb C. The difficulties and expense also arise from the necessity for the handovers to be supervised. Another difficulty relates to the father’s past inability, at odd times, to communicate in an acceptable fashion with the supervision providers. This is a manifestation of his poor communication skills, but I accept also that it has been related to his understandable frustration at the mother’s conduct and unilateral changes to arrangements relating to the handovers.

123Although the mother’s counsel said at the conclusion of the evidence in January 2016 that the mother accepted she would need to move back to live in the Suburb C area, this has not occurred, nor am I confident that it will, even though the mother said on 1 June 2016 she would move if ordered to do so. Unless the mother moves, there will continue to be some difficulty in setting up a convenient visiting regime. Furthermore, the past conduct of both parents does not inspire confidence that they will, in the short to medium term, be able to facilitate a regime which does not involve supervision. An added difficulty is that I consider the mother’s time with J needs to be supervised, at least in the short term.

124While the father has been meeting most of the supervision costs to date, he now proposes to give up his well-paid employment and start a small business, which will almost certainly result in him having a much lower income. This is going to bring the expense of supervised visits / handovers into much sharper focus. The father said in his affidavit that he is willing to pay the costs associated with the mother having supervised time. However, as the mother will now not have full-time care of J, she will have a capacity to look for work and, theoretically at least, be in a position to make a contribution.

125Although there was nothing said about it in the evidence, it would not surprise me if the mother, by choice or by force of circumstances, relocates for a time to live with her mother in Suburb B, which would make the visiting arrangements even more problematic. However, she has in the past travelled back and forward from Suburb B to Perth to facilitate the visiting regime in periods when she was staying with her mother.

(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

126Mr Cairns found that the mother has “poor self-regulatory skills” and he suspected that “her anxiety and lack of confidence are indicative of how poorly she has been prepared for the role of mother and adult by her upbringing”. He also referred to statements the mother had made that she was “fearful of all men” and he reported on his “numerous concerns about [the mother’s] norms” in this context. Mr Cairns also said that given the “excessive level of dysfunction” in the mother’s family history, he strongly suspected that she will:

struggle to interpret and know how to functionally respond to normal childhood development and exploration. Furthermore, the fact [J] is a girl enhances these concerns as [the mother] clearly struggles to relate to men in general and will likely pass this fear onto [J] as she develops.

127Mr Cairns therefore concluded that “at this stage I only have concerns for J’s developmental outcomes in [the mother’s] care”.

128The mother has only ever had brief periods of employment, and gave up work altogether when she found she was pregnant. I consider that she has done her best to provide for J, and has attended appropriately to many aspects of her care. However, I accept that she lacks necessary parenting skills, even though she has attended parenting programs. There is also evidence to suggest that she is sometimes impatient with J and disciplines her inappropriately, while at other times simply fails to discipline her at all when required. I consider it is also probable that the mother examines J for signs of sexual abuse, and has certainly encouraged J to believe she has been abused and is at risk from the father and unknown intruders. Her conduct demonstrates an inability to provide for J’s emotional wellbeing, since a basic obligation of a parent is to try to make their child feel safe and secure.

129J has her own room, toys and facilities in the home of the father’s parents, where the father was living at the time of trial. The father said he would leave his current employment and start [his own] business if J came to live with him. He said he would arrange his work around J’s routine so as “to be personally available to care for her”. He proposed that J attend [Primary School A] because it “has an excellent reputation” and is only about 200 metres from his parents’ home. He said that if he lived independently, it would be within walking distance of both the school and his parents’ home. The father said he would “continue to facilitate [J] being raised as a [Religion A] including attending at [church services] and all other aspects of the religion”.

130Mr Cairns found that the father “has a developmentally focused view of parenting”. He also referred to the father’s desire for J to have access to “‘normal’ social environments and not to be ‘raised to be scared of men’”. He also said, and I accept, that the father can provide appropriate housing, healthcare and financial support for J.

131The father worked full-time throughout his short relationship with the mother. He took two weeks off when J was born and participated in her care to the limited extent compatible with his employment. The father said “I was the breadwinner and [the mother] was primarily responsible for household chores”. Nevertheless, I accepted the father’s evidence about the extent to which he participated in J’s care before the separation.

132I am concerned about the father’s ability to provide for J’s emotional needs. In particular, the text messages attached to the mother’s affidavit and much other evidence suggest to me that there is a strong bullying and condescending element of the father’s personality. In making this finding I have in mind by way of some examples, the father telling the mother she is a “whore”; his statement to the mother about what was going to happen after “Armageddon”; his behaviour toward the staff on one occasion at Hospital B; his dealing with staff at Relationships Australia; his conduct in pursuing the mother down the footpath at a handover; his conduct in keeping the mother waiting at handovers; and his behaviour in not ensuring J was ready to go back to her mother at the appointed times, when he was keener to obtain footage of J not wanting to leave his care.

133I take no satisfaction at all in placing a young child in the care of such a person, but I only had two options, and his presented as the least unsatisfactory.

(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;

134The fact that J is a young girl is clearly of considerable importance. Apart from anything else, it helps explain the impact on J of so many people in her life being convinced that she has been sexually abused. I am satisfied J has overheard her mother and her mother’s associates talking about her being sexually abused, having needles inserted in her and probably about people being tied up with ropes. In all probability, J knows full well the dramatic reaction she gets when she tells her mother or her associates about bizarre things that have allegedly happened to her. For example, when she told Ms D that she had just licked her [pet’s] “wee-wee”, it seemingly never occurred to Ms D that she might be making it up. Instead Ms D was utterly horrified, and immediately demanded to know from J, “does anybody do that to you?”. This is one example the court knows about because Ms D volunteered the story. What the court does not know is what was said to J on the “many times” that Ms D acknowledges similar subjects were discussed with J in the past.

135Ms D described how “when a question has been asked and [J] doesn’t want to answer it, and she’s quite frightened, she will run and – and put her head in a pillow and not answer you. It’s like she’s not allowed to or she can’t or something is frightening her”. I am not convinced that the questions that have been asked of J were as innocent or trivial as Ms D’s evidence suggests. If J does indeed run off and put her head in a pillow when asked questions, it is more likely that this is explained by the fact that she does not want to answer questions from people who are anxious to gather evidence that she has been abused by a father she loves and wants to spend time with.

136It is also significant that the mother and others describe very concerning behaviours that are exhibited by J when the mother is in the vicinity, but which are not replicated when J is in the care of her father or at kindergarten or school. These include highly sexualised conduct, high-level aggression, extreme tantrums, nightmares and selective mutism. Ms S’, who the mother brought J to see on 12 occasions before she started at kindergarten, said that she “rarely observed J to be happy, use appropriate language and demonstrate appropriate behaviour for a 3 year old”. The Mercy Care support worker referred to her concern about the mother’s parenting and J’s extreme tantrums, including one “massive” tantrum which stood out in her memory after more than 30 years of working with families. I find that this concerning behaviour has much more to do with the quality of parenting she receives from her mother than it has to do with any alleged abuse by her father. That said, the high level of conflict between J’s parents will inevitably have an impact on J’s behaviour, and I fear will impact on her for the rest of her life.

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

There was no evidence that J is of Aboriginal or Islander descent.

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

137Both parents can be criticised for the extent to which they have allowed J to be caught up in their conflict. This reflects badly on their responsibilities as parents, although I accept that each would consider that they do their best to provide for J.

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

138I have already commented on the relatively low level of violence, and I have referred to the possibility that the mother has sometimes inappropriately disciplined J.

(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;

139There have been many violence retraining orders obtained or sought by both parties, or persons associated with them, including one in 2014 by J’s psychologist when the father persisted in trying to make contact with her to obtain information about J.

140On 28 July 2014, the father consented to a restraining order in favour of the mother, albeit on a “without admission” basis. The order was only for 12 months and has therefore now expired. There are no restraining orders currently in place.

(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;

141The parties have been litigating since 2011. On the Independent Children’s Lawyer’s reckoning, there were 32 different court events prior to the trial commencing. Clearly it would be preferable to make orders that would ensure there are no further proceedings. However, given the history, it would be optimistic to consider that the parties will be able to avoid further proceedings. Nevertheless, an order for J to live with the father is likely to limit the extent of future proceedings, since if J had remained with the mother, the only way the father would be likely to maintain a relationship with her is by persistently coming back to court to deal with the mother’s repeated breaches of orders.

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

142The father was living with his parents when I made the order for J to live with him. It is possible he will remain with them for some time, and I accept they are likely to have a significant role in J’s life. In fact, I would have been prepared to accept an arrangement where the father’s mother had a greater role in her care than the father’s proposals envisaged. It is unfortunate that the father will have to give up his well-paid employment to be more involved in J’s care; however, he presents as an industrious person and may be able to make an adequate living from the business he plans to establish.

143One concern I have about the father’s arrangements relates to passing references in the evidence to the mental health of his parents, and the fact his father was not called to give evidence. Annexure “C” to the father’s affidavit records that the father reported to his doctor in 2009 that both his parents “have a history of depressive illness”. The father’s mother gave evidence, and then sat in court throughout the rest of the trial. Although I have no expertise in such matters, I observed that she seemed to have a very flat affect throughout, but I recognise that she was in a foreign environment. Annexure “D” to the same affidavit indicated that when the father sought counselling in 2010 relating to stress arising from the marital breakdown, he reported his concerns “about his own mental health state, due to his father’s psychiatric history”, which he reported was that of a veteran “diagnosed with PTSD and Bi-Polar disorder”. Although I would have preferred to have seen the grandfather called as a witness, the mother’s own affidavit suggested that he behaved very well toward her during the relationship, and there is no evidence to suggest that he is a danger to J. In any event, the evidence tends to suggest that he will be a less significant figure in J’s life than the paternal grandmother, and although she seemingly has suffered from depression, she appears to be a positive and steadying influence in the life of the family.

Reasons for preferring the evidence of Mr Cairns

144Mr Cairns’ performance in the witness box was so impressive that it led counsel for the mother to suggest to him that he had been practising. The mother’s counsel accepted in closing that some of Mr Cairns’ evidence was “compelling” and conceded that “he was far more rigorous than Mr Burke”, albeit she went on to submit that if Mr Cairns “had been as rigorous at criticising the father as the mother, we would have a far more balanced report”.

145Mr Burke was not an impressive witness. Out of fairness to him, he did not see the parties or J anywhere near as often, or over such an extended period as did Mr Cairns, and there was a great deal of information to which he was not privy. However, he had no mastery of the material in his file and often struggled to answer what appeared to be straightforward questions, sometimes thumbing somewhat aimlessly through his papers when asked a question that did not require reference to the written material.

146Mr Cairns strongly challenged Mr Burke’s methodology. In my view, he was justly critical of Mr Burke for failing to test competing explanations and failing to challenge the mother’s narrative. For example, Mr Burke admitted he did not “delve into or explore or look at the family of origin of the mother” to the extent that Mr Cairns had done, even though he conceded that “family of origin issues” could have contributed to the mother’s presentation.

147Mr Cairns pointed out that most people will appear “coherent” when they are simply “allowed to talk” without being challenged. Mr Cairns said that when he started out on his assessment he had “pretty much” the same views as Mr Burke, and thought that it was “a very plausible account”. He said that when the mother was not being challenged “she presented fantastically”, and that it was only in his later interviews, when he was not going along with her narrative, that the mother’s claims appeared lacking in critical thinking.

148Mr Cairns accepted that the mother needed a lot of support to help her present her case to him, but said that he had provided help to such an extent that at one point, he felt he was “walking the line”. However, he considered the mother had not been properly prepared to function in adult society, and felt that she was “trapped” when it came to the assessment process. I do not accept that Mr Cairns’ opinion or approach was influenced by the fact that the father had paid the cost of his assessment. In fact, Mr Cairns said that he felt that he was getting close to bias by trying to help the mother too much.

149Mr Cairns’ approach demonstrates the stark difference between the therapeutic approach adopted by many psychologists in private practice (where a seemingly credible narrative is generally not challenged) and the forensic approach required of a psychologist who accepts the role of a court expert. This is not to suggest that the expert is to assume the role of fact finder, since that is the judge’s role, but that does not mean that an expert simply accepts everything they are told. (I do not suggest Mr Burke accepted everything put to him either, since he did not accept there was any validity in the mother’s claims of sexual abuse.)

150Mr Burke administered a formal personality test to both parties, but Mr Cairns did not. However, as Mr Cairns pointed out, there was no point undertaking a second test, as he had the results of the first. His complaint was that the words Mr Burke had used to explain the results of the test simply “come out of a manual”, and he expressed the view that a personality assessment “should only be a supportive document, not your lead argument”.

151Although I preferred the approach of Mr Cairns, I did not accept all of his opinions. While I have found his assessment of the mother to be entirely valid, he had a somewhat more favourable view of the father than I find was warranted. Accordingly, I was not as critical as Mr Cairns was of the DCP report of December 2013, which concluded that the father’s behaviour at handovers was such as to cause emotional harm to J, since there is no doubt that he behaved abysmally at some handovers. However, I accept that the report needed to be read in context of other reports from DCP which showed the mother in a poor light, including one which said that “it is extremely concerning that [the mother] can only focus on her distress rather than the distress of the child”.

152Mr Cairns properly conceded that experts can be wrong in their assessment of parents. Judges too are not immune from error; however, if Mr Cairns was wrong in forming a more favourable opinion of the father that I did, it serves to highlight the difficulty faced by experts who have limited opportunity to observe the parties and have less information than the court has. They also do not have the opportunity to see the parties and their witnesses under cross-examination, and they do not have the time available to counsel and the court to analyse the evidence to identify inconsistencies in the stories.

Parental responsibility for J

153Even if the presumption in favour of equal shared parental responsibility applies, it would be in J’s best interests for the father to have sole parental responsibility. Neither parent seeks an order for equal shared parental responsibility. It is clear that for the foreseeable future, they would not be capable of consulting about matters concerning J and reaching agreements about long-term issues. As J will primarily be living with the father, it is appropriate that he make the major decisions. He has indicated that he is not opposed to consulting with the mother in relation to such matters, and I will order accordingly.

Living and contact arrangements for J

154In deciding that J should live with the father, I have had regard to the whole of the evidence which I consider pointed in that direction, notwithstanding what I find to be significant deficits in the father. My finding has been made independently, but in accordance with the evidence of Mr Cairns, who was of the firm opinion that J should primarily live with the father. In expressing his view, Mr Cairns said that the father

is better placed to provide a healthy developmental and emotionally stable context for J. The evidence at hand suggests J is comfortable at her father’s house so I do not believe the change will be too dramatic. The involvement of [the father’s mother] has already been shown to calm her so I would strongly urge she is closely involved in the near future.

155Mr Cairns said he could not be confident that he could predict what action the mother might take if she felt under pressure, and he therefore strongly recommended that she have “supervised contact for the next three months on a weekly basis until it is clear that she has shown the ability to be emotionally stable and not act in a manner that undermines the co-parenting context or J’s wellbeing”. He said that once the mother was stable, she should be able to have unsupervised visits for another three months for a full day, and if no issues arose, she should then have unsupervised weekends on a weekly basis. However, Mr Cairns said he considered the living arrangements should be reassessed after six months to assist in the establishment of final orders, as he did not consider his recommendations would necessarily be practical in the longer term. Mr Cairns also said that he would support nightly phone contact for a period suitable to a child of J’s age.

156I propose to convene one final hearing, now that a little of the dust may have settled, in order to receive submissions about the form of visiting arrangements that will best suit J. I am anxious to hear how J has fared in the first few weeks away from her mother, as this will provide context for the decision about how the arrangements should be progressed. I invite both parties to provide a Minute of Orders they will seek at that hearing.

Counselling and a further expert report

157There were a variety of recommendations during the proceedings for the parties to attend programs and have therapy. The father has attended the FAIR program and a conflict resolution program. If the father has not already attended a parenting program as recommended by Mr Cairns, it may be helpful if he did so.

158The mother has already had a lot of help to assist her to improve her parenting. I consider she may benefit from counselling to deal with her anxiety and her belief systems. However, I agree with Mr Cairns that the therapist would not only need to be “someone suitably qualified”, but would also need to “hold [the mother] very gently”. In my view, such therapy would have a greater likelihood of success if the therapist had access to these reasons so as to provide some context for the work that would need to be done. Although Mr Cairns also recommended “relationship counselling” for the parties, I consider that this would be best left until the mother has undertaken and made progress in her own therapy.

159I have already made an order for J to have counselling. I consider it is most important that this be maintained while she is settling into the father’s home, and that it should only come to an end when the counsellor considers that appropriate. Otherwise, I do not propose to direct the parties to attend on any more programmes or any more therapy. They have heard the views of the two experts on this topic, and I consider it would be best if they decided for themselves whether they want to make the commitment required for further work in this area.

160If funds permitted, I consider it would be desirable for there to be an updated expert report provided in about six months’ time to see how J is coming along. Although the mother doubts Mr Cairns’ objectivity, I have no doubt that he would be the expert best placed to provide an assessment given his extensive involvement with J and her parents. Mr Cairns’ own evidence revealed that he has been prepared to admit when he has been proven wrong in his recommendations.

I certify that the preceding [160] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate

2 August 2016

______________________________________

1 A number of [pets] featured in the evidence, including one which J allegedly maltreated so badly it had to be put down, although I am not entirely convinced I was given the true story about what happened.

2 The proprietor of the service, [Mr B], gave his evidence in an obstructive and most unsatisfactory fashion. He was obviously annoyed about being called to give evidence and, in my view, had made up his mind in advance that he would not remember anything. Those who seek to run “for profit” supervision services must expect to come to court occasionally to give evidence of the important interactions they observe.