Wing and Choi

[2013] FamCA 323

FAMILY COURT OF AUSTRALIA

WING & CHOI [2013] FamCA 323

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

APPLICANT: Mr Wing

RESPONDENT: Ms Choi

INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

FILE NUMBER: SYC 5803 of 2008

DATE DELIVERED: 8 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 3, 4, 5, 6 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Tiyce & Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Braine

SOLICITOR FOR THE RESPONDENT: Grays Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Moore

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

Orders

1. That all existing orders in relation to the child G born on … August 2006 (“the child”) are discharged.

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

3. That the child live with the mother.

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

   4.1for a period of not less than two hours on two occasions under the supervision of officers of the Department of Family and Community Services, at times and locations to be nominated by the delegate of the Director-General

   4.2commencing on the second weekend after the periods prescribed by order 4.1, on four occasions on alternate Saturdays from 10:00am until 2:00pm under the supervision of the paternal grandfather Mr B, the paternal grandmother Ms C, the paternal aunt Ms D or the paternal uncle Mr E

   4.3commencing on the second weekend after the four occasions prescribed by order 4.2, each alternate Saturday from 10:00am until 4:00pm provided that such periods occur in the presence of one of the persons named in order 4.2

   4.4commencing in November 2013, each alternate weekend from 10:00am on Saturday until 4:00pm on Sunday, provided that the child stays overnight at the home of the paternal grandparents

   4.5commencing in February 2015:

   4.5.1each alternate weekend during school term time from the conclusion of school on Friday until the commencement of school on Monday  and

   4.5.2from the conclusion of school on Thursday until the commencement of school on Friday in every other week during school term time

   4.5.3for four consecutive nights during the terms 1, 2 and 3 school holidays being from Monday to Thursday in week 1 unless otherwise agreed in writing by the parties

   4.5.4for two blocks of four consecutive nights during the Christmas 2015 school holidays, being from Monday to Thursday in weeks 1 and 4 unless otherwise agreed in writing by the parties

   4.6commencing in 2016, for one half of all school holidays being the first half in even-numbered years and the second half in odd-numbered years unless otherwise agreed in writing by the parties.

5. That the parties effect changeovers for the purposes of implementation of these orders at Suburb F Railway Station on occasions when time with the father does not commence or conclude at the child’s school.

6. 6.1     That the child spend time with the mother from 9:00am until 7:30pm on Mothers Day if she is not otherwise in her care pursuant to these orders.

   6.2That the child spend time with the father from 9:00am until 7:30pm on Fathers Day if she is not otherwise in his care pursuant to these orders.

7. 7.1     That the mother keep the father informed of all major long-term issues in relation to the child and give all consents necessary to enable him to communicate with and obtain information from her treating health professionals and staff of her school.

   7.2That the mother give all consents and authorities necessary to cause the principal for the time being, or his or her delegate, to forward to the father copies of the child’s school reports and photographs and any other documents ordinarily forwarded to parents at the expense of the father.

8. That each of the parties is restrained from making derogatory remarks about the other parent in the presence or hearing of the child and causing or permitting any other person to do so.

9. 9.1     That the mother attend Organisation A as soon as practicable and complete an application for referral to the “Brighter Futures” program.

   9.2That, in the event that the mother is referred to the “Brighter Futures” program, she will accept the assistance of its staff and follow their reasonable directions.

10. That the Independent Child’s Lawyer is granted leave to provide a copy of the report of Associate Professor H to the mother’s casework supervisor at the “Brighter Futures” program.

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

12. That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5803 of 2008

Mr Wing

Applicant

And

Ms Choi

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS  

1. Mr Wing, (“the father”) and Ms Choi, (“the mother”) are the parents of a little girl, G, (“the child”) who was born in August 2006 and is now six years of age.  The child has lived with the mother since her parents separated on 30 May 2008 and there was no dispute that she will continue to do so.  Ultimately the issues in these proceedings were whether the mother should have sole parental responsibility and what time the child should spend with the father.

2. In January/February 2011 the mother made allegations that the father sexually abused the child.  On 20 April 2011 the Director-General of the Department of Family and Community Services intervened in the proceedings.  I will refer to the allegations of sexual abuse below in these reasons.

3. The matter was listed for a five day trial commencing on 3 December 2012.  On that day, by consent of all parties, leave was granted to the Director-General to withdraw from the proceedings.  At the invitation of counsel for the Director-General the following matters were noted:

a)        The Director-General consents to being bound by an order to provide supervision for two visits between the father and the child the subject of these proceedings.

b)         If the parties consider that they will be assisted by intervention of a social work nature, either parent must contact [Organisation A] and request inclusion in the Brighter Futures program.

c)         [Ms I] has today made enquiries of the intake officer of [Organisation A] and been informed that it is likely that this family will be accepted into the Brighter Futures program when the Director-General confirms that there is no current open plan.

1. At the commencement of the trial counsel for the mother informed the court that she “could not contend that a finding of sexual abuse is open”.  In final submissions, counsel stated that:  “the mother accepts that no finding of unacceptable risk of sexual abuse is available”. 

Background

1. The father was born in 1960 and is now 52 years of age.  The mother was born in 1970 and is presently 42 years old.  They married in China in 2006 and lived in China until the family migrated to Australia in April 2008.

2. The mother alleged that the father subjected her to verbal abuse and physical violence throughout their relationship.  The father initially denied that he directed violence at the mother.  In cross-examination, however, he admitted that he kicked her leg and pushed her on one occasion.  He conceded in his oral evidence “I accept that it was untrue for me to say there was no domestic violence in my affidavits”. 

3. During the trial considerable attention was focussed on an alleged incident between the parties, which may have involved a knife, while they lived in China.  There was no independent evidence in relation to this incident and, ultimately, I could see no reason to prefer the account of one party over that of the other.  In any event, the father conceded in his oral evidence that he perpetrated violence against the mother.

4. The parties and the child lived with the father’s parents in their home at Sydney Suburb J after they came to Australia in April 2008.  They separated on 30 May 2008 in disputed circumstances.  The father alleged that the mother took the child and left the home, without warning, having obtained an interim apprehended violence order against him on 29 May 2008.  The mother maintained that she approached police after receiving advice from a prospective employer at a job interview on 29 May 2008.

5. The mother claimed that the father verbally abused her and hit the child on the morning of the job interview on 29 May 2008.  She said that the prospective employer noticed that she was upset and advised her to approach Centrelink.  He then telephoned Centrelink for her and she received advice from a social worker.  The mother then approached police and an officer obtained an interim apprehended violence order against the father on an ex parte basis. 

6. On 30 May 2008 the mother and child moved to a refuge with the assistance of police officers.  The father had no knowledge of their whereabouts and commenced proceedings in the Federal Magistrates Court on 3 October 2008.  On 10 October 2008 a Federal Magistrate made a location order.

7. On 29 June 2008 the father’s sister, Ms K, and the mother arranged a meeting between the parents and the child at McDonalds Restaurant in Suburb L.  The child next saw the father in June 2009, following interim orders of 27 February 2009 that she spend time with him under the supervision of workers at M Contact Centre.  The child and the father spent four supervised visits together at M Contact Centre in June 2009.

8. In August 2009 the parties agreed for the child to spend time with the father and his family at the home of the paternal grandparents on her birthday.  On 11 September 2009 the Federal Magistrates Court ordered that the child spend time with the father from 10:00am until 5:00pm each Sunday, under the supervision of a member of the paternal family.  By agreement between the parties, the father again spent time with the child on her birthday in 2009.

9. Late in 2009 the mother was referred to the Brighter Futures Program and the child began to see a psychologist.  The mother alleged that the child’s behaviour began to change for the worse after visits with the father in September 2009.

10. The father was in China between September 2010 and December 2010.  The child’s first period of time with the father following his return to Australia was to take place on 19 December 2010.  There was confusion between the parties about the arrangements and they both made complaints to police during the course of that day.  Ultimately, the child spent time with the father between approximately 1:00pm and 6:30pm on 19 December 2010.

11. The mother alleged that the child complained to her of sexually inappropriate behaviour on the part of the father on 23 January 2011 and 9 February 2011.  She attended a police station on 10 February 2011 but was unable to make a report due to language difficulties.  She returned the following day when a Mandarin speaking police officer was available to record her complaint of sexual abuse of the child by the father.

12. The child refused to enter the interview room at the police station on 10 February 2011.  The mother then made a video recording of the child repeating her complaints of sexual abuse by the father. 

13. On 11 February 2011 officers of the Department of Family and Community Services received a Risk of Harm Report.  Another Risk of Harm Report was received by departmental officers on 14 February 2011.  On that date social workers at Brighter Futures assisted the mother and the child to move to a refuge in Suburb N.  On the advice of one of these workers the mother stopped sending the child to day care.

14. On 16 February 2011 JIRT officers made two unsuccessful attempts to interview the child.  The mother then insisted that these officers listen to her recording of the child repeating her complaints of sexual abuse by the father.  The officers refused to listen to the recording and expressed concern for the child’s psychological wellbeing in the care of the mother.  The JIRT officers were successful in their third attempt to interview the child, who made no complaint of sexual abuse.  The allegations were unsubstantiated by JIRT and no further action was taken in relation to sexual abuse of the child.

15. On 8 March 2011 the Federal Magistrates Court transferred the proceedings to the Family Court and suspended all orders for the child to spend time with the father.  As noted, the Director-General of the Department of Family and Community Services intervened in the proceedings early in 2011. 

16. A single expert, Associate Professor H, interviewed the parents, the child and members of the paternal family on 15 November 2011.  The child has not otherwise seen the father or any member of the paternal family since February 2011.

The Evidence and Witnesses

1. The applicant father relied on the following affidavits;

   1.Mr Wing (the father) sworn on 6 May 2010, 7 March 2011 and 28 August 2012

   2.Mr E (the father’s brother) sworn on 30 October 2012

   3.Ms D (the father’s sister) sworn on 30 October 2012.

   All of these witnesses gave oral evidence, via an interpreter with the exception of Ms D.  The paternal grandfather, Mr B, gave oral evidence-in-chief and was cross-examined with the assistance of an interpreter.  No objection was taken to leave being granted for Mr B to give this evidence.

2. The respondent mother relied on her affidavit sworn on 10 September 2012.  She also gave oral evidence with the assistance of an interpreter.

3. The intervener relied upon the following affidavits:

   1.Ms I, (JIRT casework manager) affirmed on 19 April 2011

   2.Ms O, (JIRT Family and Communities caseworker) sworn on 29 November 2012.

   Neither of these witnesses was required for cross-examination.

4. I had the assistance of a Magellan Report dated 15 April 2011, which summarised the family’s involvement with officers of the Department of Family and Community Services.  I had the benefit of a report dated 29 May 2012 and oral evidence from the single expert, Associate Professor H.

Approach To These Proceedings

1. In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. 

2. The court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:

   [8] Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   [9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…

   [13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…

   [15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …

1. A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166 CLR 69. Their Honours said (at page 76):

   …the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…”

   and at page 75:

   “…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.  The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

2. In M and M (at pp76-77) the High Court identified the relevant standard of proof in these terms:

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:

   ‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

3. The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:

   140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2)      Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)the nature of the cause of action or defence; and

   (b)the nature of the subject matter of the proceeding; and

   (c)the gravity of the matters alleged.

4. The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.

5. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:

   In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred.  We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.  The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty.  However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

6. The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S (1996) FLC 92-665:

   In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as:  What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom have the allegations been made?  What level of detail do they involve?  Over what period of time have the allegations been made?  Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegations?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them? What expert evidence has been provided?  Are there satisfactory explanations of the allegations apart from sexual abuse?  What are the likely future effects on the child?

   I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing “unacceptable risk” of sexual abuse of a child.

The Allegations of Sexual Abuse

1. As noted, counsel for the mother stated in the clearest of terms at the commencement and conclusion of the trial that no finding is open that the father sexually abused the child or that there is an unacceptable risk of such conduct on his part in the future.  The Director-General withdrew from the proceedings at the start of the trial and thus implicitly acknowledged that sexual abuse was no longer a live issue.

2. Independently of the concessions of the mother, I reached the conclusion that the father did not sexually abuse the child and there is no unacceptable risk of such conduct on his part in the future.  In my view, the withdrawal of the Director-General from the proceedings and the proposal of the Independent Child’s Lawyer (“ICL”) for eventual unsupervised time lend support to the conclusion that sexual abuse ceased to be an issue in the proceedings.

3. I consider that further support for this conclusion can be garnered from the Magellan Report and the opinions expressed by Associate Professor H.  The Magellan Report stated that:   “…sexual abuse allegations have not been substantiated…” and no further action was taken by JIRT after that determination.

   Associate Professor H opined as follows:

   Other than the allegations of the mother, there seems to be no evidence to suggest that [the father] poses a risk of sexual harm to the child;  DCS and JIRT investigations do not substantiate such risk.

4. For these reasons I consider it unnecessary that I examine further the evidence in relation to the allegations of sexual abuse.  I find to the requisite standard that the father did not sexually abuse the child.  I find further that there is no unacceptable risk of sexual abuse of the child by the father.

The Best Interests of the child:  Section 60CC Considerations

Section 60CC(2):  The Primary Considerations

1. The mother and the ICL proposed that the child spend time regularly with the father, albeit on different terms and conditions.  It thus seems to me that both of these parties acknowledged that the child will benefit from a meaningful relationship with the father. 

2. As noted, the Magellan Report stated:  “…JIRT holds concerns for [the child’s] psychological wellbeing whilst in the mother’s care”.  Associate Professor [H] opined as follows:  “While the mother was observed to be affectionate and responsive to the child her behaviour in regard to allegations of sexual abuse is such as to have caused psychological harm;  [The mother’s] current views suggest that this risk is unameliorated.”  The fact is, however, that the mother is the unchallenged residence parent and realistically, she is the only present option as the child’s primary carer.

3. The father’s own admissions established the child has been exposed in the past to family violence between her parents.  In my view, there is a clear need to protect the child from any further exposure to such violence.

4. The mother alleged that the father inflicted physical discipline on the child prior to the separation.  The father denied these assertions and there was no independent evidence relevant to this issue.  I am not prepared to find, on the strength only of the mother’s uncorroborated allegations, that the father directed violence at the child.  I have suspicions, however, that he may well have subjected the child to unnecessary and excessive physical punishment.

Section 60CC(3):  The Additional Considerations

1. The father has spent no time with the child since November 2011.  He was thus unable to give any evidence as to views expressed to him by the child concerning parenting arrangements.

2. Associate Professor H interviewed the child alone and reported as follows:

   After a time [the child] was more relaxed and discussed her visit with her father today.  She said she was happy to see him and would like to see him again and would like to see her grandparents.  She was not quite so sure about aunts and uncles and cousins – the impression was that they have not played a major role with her.

   [The child] was quite keen to play with the gifts that her father had left her and it seems that she saw them as positive symbols of her contact with him.

3. The mother told Associate Professor H that she had informed the child that she would see the father on the day of the interviews.  She reported:

   [The mother] said that when the contact visits started [the child] said that she didn’t like to go, she said her daddy is bad because he told her to hit her mummy.  [The child] does not seem to enjoy her time with her dad but she does enjoy time with her grandparents.

   Since the sexual abuse reports to the police, contact has now been stopped.  But [the child] still speaks about her dad quite often;  she asks:  ‘why is my dad so bad to me to ask me to hit my mum?’

   In preparation for today’s visit [the mother] told [the child] that her dad would be coming and she said that she didn’t want to see him, that she was scared of him.

   As noted, the child expressed a contrary view to Associate Professor H after she had interacted with the father and his family.

4. Associate Professor H offered these opinions as to the nature of the relationship of the child with each of her parents and the paternal family:

   It is apparent that [the child’s] primary attachment is to her mother and she wishes to reside primarily with her mother.  She seems quite secure and happy in her mother’s care.  Other than the issues relating to the abuse allegations, [the mother] is loving and responsive to [the child]. 

   [The child] has a significant but cautious relationship with her father.  She has not spent sufficient time with him to have developed a strong attachment and also any attachment she may have had would have been undermined by the mother’s allegations;  apparently, this included [the mother] coaching the child in regard to abuse by her father.

   [The child] showed some interest in the paternal grandparents but not much interest in the rest of the extended paternal family and the impression was that she has not been greatly involved with them.

   [The child] is too young to understand the situation but there was every indication that she does want to spend some time with her father and her grandparents.

5. The father has been persistent in his attempts to spend time with the child and maintain a relationship with her.  In 2009 he undertook two parenting courses and in 2010 he attended an anger management workshop.  It thus seems to me that the father has made genuine efforts to spend time with the child and maximise his opportunity to play a significant role in her life.

6. The father receives a disability pension in an amount of $680 per fortnight.  He pays $13 per fortnight by way of child support, which I assume is the amount assessed by the Agency.  Nothing in the evidence suggested that the father proposes to take on paid employment in the foreseeable future.

7. The mother is responsible for the child’s fulltime care and practically all of her financial support.  She has no family in Australia but has successfully accessed support from various community based organisations.  She attends two Chinese community organisations.  The mother gains support and friendship from members of her Church.

8. All parties seek a change in the child’s current circumstances, which will see her again spending regular time with the father and the paternal family.  It seems to me to be of particular importance that these relationships are re-established as no maternal family members live in Australia.

9. Both parents are dependent upon public transport and have limited financial means.  The mother proposed that changeovers take place at Suburb F Railway Station for the first eighteen months after court orders and thereafter at Suburb P Station.  The father proposed that handovers take place at Suburb F Station.

10. The mother proposed that the paternal grandfather or the father’s sister Ms D attend changeovers.  It seems that there is no difficulty with the paternal grandfather assisting in whatever way he can to facilitate the child’s time with the father.  Ms D, however, can offer only limited assistance due to her own family commitments.  I do not propose to order that the paternal grandfather attend changeovers.  I would observe, however, that the father would be well advised to have the paternal grandfather or some other relative present to reassure the mother that there will be no unpleasantness on these occasions.

11. The father’s capacity to meet the child’s needs was a matter of concern to Associate Professor H.  She offered these opinions:

    The father projects features suggestive of personality disturbance:  he has prominent narcissistic personality traits, meaning an egocentric orientation but short of an actual personality disorder.  Additionally, he seems to have a poor work history and to have not established himself well in an independent and economically secure life in Australia.  All of this combined suggests personality disturbance and perhaps frank disorder – this is a matter of degree based on the extent to which the person’s adjustment differs from peers of similar background (DSM criteria).  Otherwise [the father] does not present any evidence of psychiatric disorder and certainly no mental illness and there is no independent evidence that he has done so in the past.

12. In the opinion of Associate Professor H, the father’s “prominent narcissistic traits” manifested in a “lack of empathic attunement to the child”.  She opined, however, that: 

    [The father] has never been the primary carer for the child so his capacity to provide for the child’s physical needs is untested;  however I would expect that his family would assist him in this regard if needed.  It is likely that he has the capacity to meet [the child’s] educational needs, although there may be some economic restraints since his income is quite limited.  While he does not have an optimal capacity to provide for her psychological needs, there is nothing to suggest that he proposes a risk of  psychological harm to the child.

13. Associate Professor H also had concerns as to the mother’s capacity to meet the child’s needs.  These concerns arose from the mother’s insistence that the father sexually abused the child, despite the outcome of the JIRT investigation.  Associate Professor H considered that this insistence, the mother’s repetition of these allegations to a variety of people and her attempt to have the child medically examined indicate “a clear risk of psychological harm to the child”.  Associate Professor H opined, however, that the mother “showed little evidence of psychiatric disturbance” and noted that she observed “nothing to suggest that her care of the child was lacking”.

14. Associate Professor H harboured some concerns that the paternal family may denigrate the mother and attempt to influence the child to adopt the father’s position.  She formed a favourable impression of the paternal family, however, describing them as “responsible people who value work and value service to the community”.

15. Associate Professor H ultimately reached the conclusion that each parent poses a risk to the child’s emotional wellbeing.  She reported:

    In any event, there are risks in both households of the child’s relationship with the other parent being undermined and to this extent there is a risk of psychological harm in both contexts.

16. In my view, there is no reason for concern as to the attitude of either the father or the mother to the child and the responsibilities and duties of parenthood.  I consider that they both love their daughter and have done their best for her within the limitations identified by Associate Professor H. 

17. I have referred above to the mother’s allegations of family violence on the part of  the father and the view which I took of this evidence.  On 29 May 2008 an interim apprehended violence order was made against the father on an ex parte basis.  On 23 September 2008 an interim AVO was made and the proceedings adjourned to 27 November 2008.  It appears that a contested hearing took place on 27 November 2008 and a final AVO was made against the father for the protection of the mother for two years.

18. The only evidence which was before me in relation to the AVO was the mother’s original statement to police of 29 May 2008.  I have no knowledge of any evidence which was given at the contested hearing.  The father’s oral evidence suggested that he would have lodged an appeal against the final order if he had been aware of his right to do so. 

19. Nothing in the evidence suggested to me that orders in terms sought by either parent or the ICL would be more likely to lead to the institution of further proceedings than would be the case with any other proposal.  I can only share Associate Professor H’s hope that “possibly over time the mother may develop confidence that nothing will happen to the child when in the care of the father and his family”. 

The Presumption of Equal Shared Parental Responsibility

1. As these proceedings will result in the making of parenting orders, I am required to apply a presumption that it would be in the child’s best interest for her mother and father to have equal shared parental responsibility. The mother and the ICL sought an order that she have sole parental responsibility. The father proposed that each party retain parental responsibility in accordance with section 61C of the Family Law Act.

2. The ICL submitted that the parties “have no ability to communicate at all”, thus the mother should have sole parental responsibility.  In cross-examination the father conceded that “since the separation in May 2008 we have had very poor communication – no telephone, no email, no discussion about our daughter’s welfare”. 

3. In these circumstances, equal shared parental responsibility seems to me to be a practical impossibility.  I see no reason, however, why the father should continue to be excluded from information about the child’s health care issues and educational progress.  The orders proposed by the ICL will ensure that he is kept informed about these pivotal aspects of the child’s life.

Conclusion

1. As there will be no order for equal shared parental responsibility, it is unnecessary for me to consider whether it would be in the child’s best interests, and reasonably practicable, for her to spend equal or substantial and significant time with each of her mother and father.  I am at liberty to proceed directly to a determination of what orders are in the best interests of the child.

1. It seemed to me that there were three main issues involved in the crafting of orders for the child to resume spending time with the father.  The first issue was whether staff of the Salvation Army should supervise time for approximately six months, as proposed by the mother, or any other period.  The second issue was whether members of the paternal family have the capacity properly to fulfil the role of supervisor.  The third issue was the point at which unsupervised time should be introduced into the regime.

2. Captain Q of the Salvation Army attended court and was available to give oral evidence.  I was invited by consent to note the following matters:

   ·    all Salvation Army staff have clearance to work with children from the Department of Family and Community Services

   ·    Salvation Army staff are available to supervise time from 2:00pm until 6:00pm each Saturday commencing in January 2013

   ·    this arrangement is available for six months and could be extended to one year.

3. Associate Professor H was invited to comment on the mother’s proposal for supervision by staff of the Salvation Army.  She said:

   The advantages of the Salvation Army are chiefly containment of the mother’s anxiety.  [These people] would be strangers to the child.  I would not think an external agency would be necessary.  I think early visits should be in the paternal home.

4. The paternal grandfather, Mr B, gave evidence that he would be willing to act as supervisor and that he would “protect” the child.  He said that he would immediately telephone the mother if the father behaved inappropriately toward the child.  He said “I realise that as supervisor my granddaughter’s welfare comes before my son’s.  I understand that my son might not be happy if I ring her mother – even if he disagrees, I will ring her.”  The paternal grandfather gave evidence that he would be willing to provide an undertaking to the court to define his responsibilities as a supervisor.

5. The paternal aunt,  Ms D, also offered to provide an undertaking to the court.  She said “I will definitely put my niece first”.  Ms D could be available for one and a half to two hours on Sundays but was unable to commit to being present on all occasions.

6. The paternal uncle, Mr E, said that he saw no necessity for him to be present during  time which the child spends with the father, as his parents could assume the role of supervisors.  When pressed, however, he said that he would be willing to be present on the first two occasions.

7. It seems to me that the paternal grandfather, aunt and uncle would all be appropriate supervisors on condition that they entered into a written undertaking in terms drafted by the ICL.  It is probably the case that the paternal grandmother would also be an appropriate supervisor but I heard no evidence from her and am thus unable to make any such finding.  The paternal grandmother, Ms C, told Associate Professor H that she would be willing to supervise the child’s time with the father.  Associate Professor H said in her oral evidence “I think they would abide by undertakings”. 

8. I will make orders which allow all four of these members of the paternal family to supervise the child’s time with the father.  My intention is to provide flexibility and allow the paternal family to make these arrangements as is most convenient to them from time to time.

9. Associate Professor H was asked about the desirability of a slower paced increase in the child’s time with the father.  She said: 

   The advantages of slower progress would be that the child is still young and has had little contact with the father and his family and the mother is totally unsupportive, so the child is very vulnerable.  The mother’s anxiety is very important because it makes the child vulnerable. 

   She added: 

   I would say always go for slower rather than quicker in this particular family.   We have to give the child time to mature so that she can develop her own judgment.

   I have no reason to doubt the validity of these expert opinions.

10. It was common ground that officers of the Department of Family and Community Services will supervise the first two periods of time which the child spends with the father.  I am not persuaded that it would be in the child’s best interests to involve strangers in the reintroduction to her life of the father and paternal family.  I extend my thanks to Captain Q for his offer of supervision and support for the mother.

11. Having heard the evidence of the paternal grandfather, aunt and uncle and taking into account the opinions of Associate Professor H, I am persuaded that those family members and the paternal grandmother would properly fulfil the role of supervisor of the child’s time with the father.  I have no reason whatsoever to consider that any of them would allow the child to be harmed by the father.

12. It is extremely important that the paternal family understand that they must not denigrate the mother in the child’s hearing.  I will require the proposed supervisors to enter into a written undertaking in terms drafted by the ICL.  No doubt a non-denigration clause will be included in the undertaking.

13. It is equally important that the mother refrains from denigrating the father and paternal family in the presence of the child.  The ICL proposed mutual non-denigration orders and I will accede to that proposal.

14. It seemed to me that the orders proposed by the ICL were carefully considered and crafted to meet the child’s needs at this point in her life.  I will thus make orders in accordance with the structure of the proposal of the ICL.

15. The ICL proposed a number of orders designed to provide support to the mother generally and in relation to adjusting to a reintroduction of the child’s time with the father.  The Minute of Orders submitted by counsel for the mother suggested that she consented to these proposals.

I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 8 March 2013.

Associate:     

Date:              8 March 2013