Woolcott & Exell
[2007] FamCA 178
•12 March 2007
FAMILY COURT OF AUSTRALIA
| WOOLCOTT & EXELL | [2007] FamCA 178 |
| FAMILY LAW - CHILDREN - Child related proceedings - Evidence relating to child abuse or family violence FAMILY LAW - CHILDREN - With whom a child lives - Best interests of a child |
| APPLICANT: | Mr Woolcott |
| RESPONDENT: | Ms Exell |
| FILE NUMBER: | TVF | 367 | of | 2005 |
| DATE DELIVERED: | 12 March 2007 |
| PLACE DELIVERED: | Townsville, Qld |
| JUDGMENT OF: | Monteith J |
| HEARING DATE: | 15, 16, 20, 21 & 22 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fellows |
| COUNSEL FOR THE RESPONDENT: | Mr Trevino |
| COUNSEL FOR THE CHILDREN’S LAWYER: | Ms Willis |
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: TVF 367 of 2005
| Mr Woolcott |
Applicant
And
| Ms Exell |
Respondent
REASONS FOR JUDGMENT
Introduction
This case involves a dispute between the applicant father and respondent mother with respect to their two children, a daughter, born in September 1999, now aged seven, and a son, born in September 2004, now aged two and a half.
After hearing this case for five days and at the conclusion of submissions, Counsel for the father and for the Independent Children’s Lawyer asked me to make orders and to provide Reasons for those orders at a later date because of the circumstances surrounding the trial and these children. Counsel, who appeared on behalf of the mother, did not object to that course and so I made the following orders:
“IT IS ORDERED THAT:
1.The children, [a daughter], born in September 1999 and [a son], born in September 2004 live with the Father.
2.The Father have sole parental responsibility for the children.
3.Each of the Mother and the Father is restrained from relocating the children permanently from the [C] area, without first obtaining the written agreement of the other party, or Order of this Court.
IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT:
4.The Mother is to spend time with the children conditional upon:
(a) the time spent with [the daughter] being supervised on the basis as referred to in Order 5 herein.
(b) The Mother is to attend upon and engage in treatment with a mental health professional as recommended by [Dr M] and [Miss T] in relation to her anxieties/possible psychotic disorder/unresolved issues arising from the breakdown of her relationship with the Father and to attend upon such professional for the period as recommended by that professional. For this purpose, the Mother must provide to her treating professional the psychiatric report of [Dr M], and each of the Family Reports prepared by [Miss T] in this matter, as well as a copy of the Orders of this Court together with the Reasons for Judgment.
5.The Mother is to spend time with the children on the basis of once per fortnight at the [C] Contact Centre with both children.
6.The supervision referred to in Order 5 shall occur at the [C] Contact Centre for three months, and thereafter by a supervisor agreed to by all the parties, including the Independent Children’s Lawyer. The Mother shall pay the costs of such supervision. If there is no agreement or no alternative supervisor available, the contact shall continue at the Contact Centre.
7.The Mother will communicate with [the children] by telephone once per week, provided that she initiates the call, and that the call is able to be placed on speaker phone. The Father and/or his partner, [Y], may be present for the duration of the call.
8.After the expiration of six months, the matter shall be relisted for hearing after:
(a) a review of the Mother’s attendance upon her mental health practitioner as referred to in these Orders by [Dr M] and [Miss T] and for that purpose the Mother shall provide evidence of her attendance to the Independent Children’s Lawyer, together with a written authority enabling the Independent Children’s Lawyer to contact the mental health practitioner to discuss the Mother’s progress and to provide such material to [Dr M] and [Miss T];
(b) a review of the progress of the supervised contact by [Dr M] and [Miss T] after the Independent Children’s Lawyer obtains evidence from the contact centre and any agreed supervisor;
for the purpose of determining whether to continue the period of supervision.
9.The time spent by the children with the Mother pursuant to these Orders shall continue through the school holidays.
10.The Mother and the Father must not permit the children to communicate with the maternal grandmother or spend time with the maternal grandmother, other than by sending a letter or gifts to the children and the Father shall be at liberty to read and inspect such letters or gifts.
Restraints
11.The Mother shall be restrained from providing details of the past sexual abuse allegations against the Father or others as referred to in her affidavit material and in oral evidence during the contested trial held in the Family Court of Australia in [C] over five days being 15, 16, 20, 21 and 22 February 2007 to either of the children’s schools, pre-schools, day care providers, or any other carer of the children or parents of the children’s friends.
12.The Mother shall be restrained from taking the children for any medical assessment or examination, counseling or treatment, or interviews of whatsoever kind relating to allegations of sexual or physical abuse without first providing written notification to the Father and the Independent Children’s Lawyer, if any, stating the basis of her request for such assessment or interview, and obtaining their written agreement. Each party is granted liberty to apply in this regard, on 24 hours notice, in the event of disagreement between the parties.
13.The Mother is restrained from discussing with [the daughter] any of the past sexual abuse allegations made by her against the father or his friends.
14.The Mother is restrained from contacting the children or spending time with the children at any other times or in any other way, directly or indirectly, other than specified in these Orders.
15.Each of the Mother and the Father are restrained from denigrating the other party in the presence or hearing of the children.
Counselling
16.Each of the parties shall do all acts and things and sign all documents necessary to enable [the daughter] to continue to attend upon a Counsellor at Centrecare or other counsellor, as recommended by the Independent Children’s Lawyer after the Independent Children’s Lawyer has explained to the counsellor the orders made and provided to the counsellor copies of the Orders. The Reasons for Judgment are to be provided to the counsellor by the Independent Children’s Lawyer when they become available.
17.The Independent Children’s Lawyer is granted leave to provide a copy of these Orders and Reasons for Judgment to the school/pre-school/daycare/care attending by the children.
18.The terms of these orders are to be explained to the children by the Independent Children’s Lawyer in the presence of a Counsellor today.
IT IS FURTHER ORDERED THAT:
19.Costs are reserved.
20.The Legal Aid Office Queensland be requested to continue the appointment of the Independent Children’s Lawyer.
21.The children are to be delivered up to the Father by 6.00 pm this afternoon.
22.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.”
I now provide my Reasons for making those orders.
PROPOSALS
The father in his amended Application sought that the children live with him and spend alternate weekends with the mother, half the school holidays and some special days. He also sought equal shared parental responsibility.
The mother in her amended Response sought that the children live with her in the state of New South Wales and that they spend time with the father for the Easter, June/July and September/October school holidays and for half the Christmas holidays.
Alternatively, she sought that in the event that she was not permitted to relocate, that the children live with her and spend time with the father on alternate weekends and half the school holidays together with some special days. She also sought that the parties exercise shared parental responsibility.
However, on the morning of the trial the mother abandoned her application for leave to relocate and the contest became with whom the children were to live.
By the end of the trial, not only was the issue of with whom the children were to live still alive, but the issue of whether it was in the best interests of the children for the parents to have equal shared parental responsibility and the issue of whether time spent with the mother should be supervised, had been enlivened.
BACKGROUND
For present purposes, it is sufficient if I take from the Summary of Case for the Independent Children’s Lawyer filed 14 February 2007 the chronology. I set it out hereunder:
Date
Event
January 1998
The parties commence a defacto relationship.
February 2004
The mother discovers she is pregnant with the parties’ second child.
February/March 2004
The parties separate. [The daughter] lives with her mother and spends time with her father on alternate weekends. She was attending TAS in the preparatory class.
24 February 2004
The mother was admitted to the [C] Hospital for suspected appendicitis. She was also at that time referred to the Integrated Community Mental Health Service.
March 2004
The mother commenced counselling with the mental health nurse.
1 April 2004
[The daughter’s] school made a notification to the Department of Child Safety regarding concerns about [the child’s] wellbeing. No action was taken by the Department.
4-6 June 2004
The father spent time with [the daughter].
7 June 2004
The mother made an allegation to the police that the father had physically abused [the daughter] during a visit with him as she had minor bruising to her buttock area. [The daughter] was interviewed by police and told them that she had fallen off her bike and that she had also fallen over in the yard and landed on a stick which left a second bruise on her bottom. The police report indicates that the allegations were not substantiated.
13 July 2004
The mother told her counsellor that [the daughter’s] behaviour had changed over the previous two weeks and as such arrangements were made for [her]to be examined by Dr Z, Paediatrician on 15 July 2004. No evidence of sexual abuse was evident. This was also reported to the Department of Child Safety, however, no action appears to have been taken.
From about the age of three months, [the son] spent time with his father each Sunday afternoon.
22 October 2004
The mother alleged an incident of domestic violence by the father when she denied him contact. The police attended the mother’s residence, however took no action.
2 December 2004
The mother obtained a domestic violence order against the father. The father did not attend the hearing of this application and the order was made in his absence.
January 2005
[The daughter commenced Year 1 at T School.
June 2005
The mother’s parents arrived in C to stay with the mother and the children.
14 July 2005
The mother wrote to [the daughter’s] school and informed them that she would be relocating to New South Wales at the end of the term. The mother told the school that the father did not know of her plans in this regard and they were not to tell him.
12 September 2005
The mother alleged to the police that the father had breached the domestic violence order. The father was interviewed by police [in] January 2006 and the complaint was not substantiated.
23 September 2005
The mother alleges that [the daughter] disclosed abuse at the hands of her father to her grandmother […].
23 September 2005
The alleged abuse was reported to police.
29 September 2005
[The daughter] was interviewed by police and again on 2 October 2005. No disclosures were made to the police that could be substantiated.
7 October 2005
The mother relocated with the children to New South Wales.
28 October 2005
Application by the father (final orders) – recovery and for the children to live with the father (application transferred to the Family Court).
Application in a case by the father – seeking orders that the children live with him on an interim basis.
31 October 2005
The father was interviewed by the police in relation to the allegations of sexual abuse. The complaint was not substantiated.
October 2005
The father applied for orders that the children return to C and live with him.
13 January 2006
Response by the mother – That the children live with her and that she have sole responsibility for making decisions with respect to the long term and day to day care, welfare and development of the children.
13 January 2006
Response to an application in a case by the mother – That the children live with the mother.
18 January 2006
Hearing – Order that the proceedings be adjourned to the judicial duty list.
13 February 2006
Hearing – Order that the children live with the mother conditional on the mother returning to [C] with the children by 17 March 2006 and that the children have supervised contact with the children [sic] and that an independent children’s lawyer be appointed.
14 March 2006
Mother’s application in a case – that by way of review the interim orders dated 13 February 2006 be discharged and the matter be transferred to the Parramatta Registry of the Family Court and that the children live with the mother and communicate with the father by telephone.
14 March 2006
Mother’s application in a case – That the interim orders dated 13 February 2006 be stayed pending determination of the mother’s application for review.
17 March 2006
The mother and children returned to [C]. [The daughter] enrolled in Grade 1 at [W] Primary School.
8 April 2006
The father had contact with the children at the [C] contact Centre.
13 April 2006
Hearing – The mother’s application for review be dismissed. That the father have additional time with the children on a supervised basis.
22 April 2006
The father had further supervised time with the children.
1 May 2006
A family report was prepared.
2 May 2006
Amended application in a case by the father – That the children live with the mother in [C] and that the father spend time with the children unsupervised.
4 May 2006
Orders were made that the children live with the mother and spend time with and communicate with the father on an unsupervised basis.
May 2006 to present
The children have lived with the mother and spent time with the father each alternate weekend and for half of each school holiday and on the children’s birthdays. The mother alleges that [the daughter] cries all the way to her father’s each weekend. The father alleges that [the daughter] sometimes looks like she has been crying but once she arrives she is fine.
25 September 2006
Amended response for final orders by the mother – that the children live with the mother and spend time and communicate with the father. That the mother be at liberty to live in New South Wales with the children.
There are a few additions to the Independent Children’s Lawyer’s chronology that need to be identified. Firstly, with respect to the mother’s allegation in June 2004 when she reports suspected abuse by the father to the C Police, the Police Officer’s notes record “this matter is to be not substantiated and it is extremely evident that [the mother] is vindictively making this allegation to support her Family Law Court application and there is no evidence to suggest that an assault has occurred on this or other occasions.”
In October 2004, the father moves from C to I and begins a de facto relationship with Y. She was born in March 1981, and is presently 25 years of age. She has a child of a previous relationship, B, born in June 2002 and they have had a child together, J, born in May 2006.
With respect to the Domestic Violence Order obtained by the mother, she alleges that the incident occurred on 21 October 2004 and she obtained the Domestic Violence Order against the father on 2 December 2004 in the father’s absence.
What is important to note is that she acted on her own behalf in the application before the C Magistrates Court. She admitted in cross-examination that that was because the Domestic Violence Service refused to act for her. They refused to act for her because she produced to them a tape recording of the incident. They advised her that the tape recording was fatal to her application but she wanted them to proceed to act for her without producing the tape. They refused. The mother then went to the C Magistrates Court and obtained the order, knowingly withholding the critical evidence, being the tape. The mother alleged that on the same day the father threatened to kill her and that was also on the tape. The tape was never produced.
THE CENTRAL ISSUES
As can be seen from the chronology, the father has since October 2005 been pursuing orders to enable him to spend regular time with the children. The mother has resisted the father’s attempts to spend regular time with the children and in doing so, has raised a central issue, namely that the father sexually abused the daughter, in September 2005 and that as a result of that sexual abuse, she had to relocate to Cambridge, Sydney, without obtaining the agreement of the father or the approval of the Court.
THE EVIDENCE
The maternal grandmother filed an affidavit on 22 November 2006 in support of the mother’s case.
The gravamen of the affidavit appears in paragraph 26 and reads as follows:
“On 23 September 2005 [the daughter] went to school and it was a contact Friday afternoon. At some time between 5:30pm and 6:00pm, we were watching TV and [the daughter] was playing on the floor in front of me. The Mother was bathing [the son] in the bathroom, and my Husband was outside watering the garden. [The daughter] and I were alone in the room. I noticed [the daughter] was sitting on a ball, with the ball up against her genital area and she was humping the ball in a very sexual manner, very slow and rhythmic. I had noticed this behaviour since around 2003, and have seen her do it on many occasions thereafter. We had the following conversation:
Me: Who taught you to do that?
[Daughter]: My Daddy.
Me: Does he take photos of you when you’re doing that?
[Daughter]: Yes.
Me: Did he play down there with you?
[Daughter]: No.
Me: Does [Y] touch you there?
[Daughter]: No.
Me: Does [B] touch you there?
(to the best of my knowledge, [B] is [Y’s] son).
[Daughter]: Yes.”
It is this incident on which the mother relies to justify her relocating to Sydney without the agreement of the father or the order of the Court. The grandmother was never called. This was because of a letter from Dr S, Senior Registrar Cardiology at the Sydney West Area Health Service which became Exhibit 1 in these proceedings. It stated that the maternal grandmother was “currently an in-patient in the N Hospital post ante myocardial infarction requiring urgent coronary angioplasty and stent procedure on 2 February 2007. She has had ongoing cardiac problems since her procedure and will not be fit enough for air travel or to take part in a phone link for her legal proceedings. She will require several weeks convalescence before being adequately well to resume her involvement in these proceedings. Please extend to her every assistance with regards to this matter.”
After discussion with Counsel, I ordered that the affidavit of the maternal grandmother filed on 22 November 2006 in the respondent mother’s case can be relied upon by the respondent mother, notwithstanding the deponent’s failure to attend court to be available for cross-examination on terms that if, during the trial, either the applicant father or the Independent Children’s Lawyer make application that the trial be adjourned part-heard so as to enable the deponent to be called at some later date, the application would be granted.
That never occurred but under cross-examination on 21 February, the mother admitted that the maternal grandmother had been discharged from hospital Tuesday or Wednesday of the week previous, and she had not told her solicitors about that. She swore that she had been speaking to her mother once or twice a day since discharge. No further explanation was given nor was any further application made to the Court. As a consequence, I was unable to form any opinion with respect to her credibility.
The father, his de facto partner, the mother, Dr M, a psychiatrist, and Ms T, the report writer, all gave evidence and were all cross-examined.
I formed a very favourable impression of both the father and his de facto partner and regard them both as truthful and reliable witnesses.
The mother, by contrast, was an appalling witness. I formed the opinion that she was not only unreliable but that she was deliberately untruthful. Her performance in the witness box had to be seen to be believed. The alleged incident reported by the maternal grandmother in September 2005 and the mother’s relocation back to Sydney where her mother and father live are so inter-related as to be inseparable.
The mother asserts that she relocated to Sydney because of this incident. I do not believe her.
She deposes in her trial affidavit in paragraph 5:
“On around 23 September 2005 [the daughter] made some disclosures to my mother in relation to sexual activity involving the Father. As a result of those allegations, and and I travelled to Sydney. We continued living in Sydney from October 2005 till March 2006 when we were ordered by the courts to return to [C].” the Police investigations surrounding the allegations, on 7 October 2005 the children
An examination of the chronology completely destroys the mother’s evidence on this matter.
7 September 2004 “Don’t tell father we are thinking of going to New South Wales” (See Exhibit J)
26 October 2004 Domestic Violence allegation unfairly pursued. (See Exhibit O)
23 February 2005 Enlistment of school teacher to search for behavioural patterns. (See Exhibit J)
15 March 2005 Parent-teacher interview advised of move to Sydney and counsellor arranged. (See Exhibit J)
June 2005Grandmother moves to C.
14 July 2005 Letter to the School “[The daughter] is leaving at the end of the school term. Don’t tell the father.” (See Exhibit J)
18 August 2005 The mother’s solicitors ceased to act for her. (See Exhibit C)
September 2005 The mother takes home boxes from the shop to her home. She organises for a Real Estate Agent to inspect her home which is subsequently let out, she organises for two quotations with two different removalists on 21 and 23 September 2005 and both organisations quoted on removing all of the possessions and furniture, one quoted also on removing the mother’s car. The quotes are in the range of $4,500 to $5,400. (See mother’s diary 2005 and Exhibits ICL 6, 7 and 8.) This documentary evidence is completely in conflict with the mother’s oral evidence which was that she had asked for quotations to move a couple of boxes of children’s clothing to either her brother or mother’s house. That was, in my opinion, a deliberate lie and only exposed the following day after the quotations from the removalists were subpoenaed.
23 September 2005 The allegation of sexual abuse is made, which coincides with the end of the school term.
7 October 2005 The mother moves to Sydney without telling the father or getting his agreement or without order of the Court.
Further, the alleged disclosure made by the child to the maternal grandmother is quite puzzling. As I have already indicated, I was not afforded the opportunity of making any assessment of the grandmother’s credibility.
The grandmother deposes, as I have already indicated, that she saw the daughter sitting on a ball with the ball up against her genital area and that she was humping the ball in a very sexual manner, very slow and rhythmic. The mother admitted that she had heard the grandmother tell police officers that the child had been engaged in this type of conduct for the past two or three years. The mother admitted in cross-examination that she herself also knew the child had been engaged in similar behaviour for the past two or three years. The mother said in the witness box that the child had been playing on a pillow, not a ball, as suggested by the grandmother in her affidavit. The police records show that when first asked about the event, the child did not know what the police officers were talking about.
The mother has no explanation for why she pursed the matter with the police given that she had knowledge that the child had behaved like this for the past two or three years, and no explanation for why she did not just tell the grandmother not to worry about it. She conceded, when pressed, that she in fact told the grandmother, “You have no alternative other than to report it.”
I find that the two primary assertions of the mother, namely that the father has sexually abused the daughter and that the mother had to leave C with the children because of the news of sexual abuse allegations are unsustainable and false.
I find that by creating false allegations of sexual abuse to prevent the father from enjoying an ongoing relationship with his daughter and to prevent the daughter from having a loving and meaningful relationship with her father constitutes emotional abuse by the mother upon the child.
Amazingly, a further incident is alleged to have occurred while the daughter was in her father’s care in November 2006. The mother never raised the incident with the father, no reference to such an incident, appears in her diary, nor does it appear in her affidavit material. She admits that she did not tell the Independent Children’s Lawyer but alleges she advised her own solicitor. However, on calling for any document to confirm that, and on production by the solicitor of his file, no document was produced.
It is hard to resist the conclusion that this was one last throw of the dice by the mother.
There are two reports from Ms T exhibited to affidavits filed on 15 May 2006 and 6 December 2006. I will set out her evaluation from her first report – paragraphs 66 to 81 - hereunder:
“66.[The daughter] 6 years of age and [the son] 19 months old, are the focus of a contact dispute between their parents.
67.There are abuse issues and risk factors to consider. In this regard, there are allegations of sexual abuse against the father towards the [daughter]. The matter was formally investigated and deemed unsubstantiated. It seems that the issue of abuse arose in the context of ongoing disagreements regarding contact and property and in the context of the mother wanting to relocate to Sydney where she would have the support of her parents. Indeed, during interviews her main focus appeared to be on her desire to live in Sydney. The mother did not raise any issue of abuse prior to the maternal grandmother raising concern. Further, both parents’ report observing the child’s erotic behaviour prior to moving to [C]. At that time no concern was raised. I hypothesised that the child likely continued such developmental behaviour and it was not raised as an issue until after a period of ongoing conflict between the parents regarding child and property matters following final separation. There is no reported history of concern about the father’s parenting.
68.In my view it can not be dismissed that the issue of abuse may have been raised as a strategy to allow the mother to relocate and to estrange the father from the children and from her. The mother experienced ongoing problems with depression following the breakdown of the relationship indicating that she was not coping with the breakdown. Understandably her ability to cope would have been compounded by the fact that the father had already established himself in a new relationship. I formed the impression that she may have been experiencing depression for quite some time and/or intermittently since early adulthood. From the father’s reports it would seem that she became withdrawn after moving to [C], failing to establish a social network for herself in the new community and failing to be involved in the community in general. Further, it would seem that she withdrew to the extent that she also withdrew from the relationship and family involvement. It appears that her primary support is her mother. Given such circumstances where an individual has a history of depression, combined with moving to a new community away from familiar surroundings and people and added to this the unexpected breakdown of a significant relationship, it is understandable that the individual would feel very isolated and unsupported leading to a driving need to return to the familiar and to a primary long-term support base. However, the issue of abuse is a matter for the Court.
69.Also, there is a current DVO against the father. The circumstances surrounding the DVO appear to be related to contact issues and involved damage to property and not to assault on a person. There are no previous DVO’s and there are no reports of any violence during the relationship whatsoever.
70.From interviews and observations I formed the view that the [daughter] has a significant attachment to her father. Although initially a little reluctant she was pleased to see her father and appeared to enjoy his company. The interaction was warm and spontaneous. The father was spontaneously appropriate and caring in his interactions with [the daughter]. From interviews and observations there was no information provided to me to suggest abuse of any kind. However, it did appear from interview with [the daughter] that she has been involved in adult issues such that there was suggestion of Alignment on the part of the mother. The father’s disclosures regarding comments made by the child during contact would further seem to support this. That the child disclosed that she was told to talk to the writer about bad things and Dad may been seen to further confirm this. This is a cause for concern in terms of the ongoing development of a positive father-child relationship and in terms of the child’s psychological wellbeing.
71.In terms of the child’s dissatisfaction with aspects of contact with the father, I formed the view that being in a new household [the daughter] has suddenly been thrust into a situation where she is no longer the only child to be considered. The father’s partner has a 4-year-old child and I formed the view that [the daughter] is learning to share parental attention with another child and to share in general with another child. Given her personality such situation may prove particularly challenging for [the daughter]. That the father chose to cohabitate with his new partner so soon after separating from the mother is probably not prudent in terms of the child being thrust into a new family situation and having to cope with that on both social and psychological levels. Ideally it would have been better if he had of [sic] maintained his own residence at least for a period until he had established a proper routine with the child and until the legal matters between himself and the mother were finalised. Further, it would seem that the distance for travel created by the location of his new residence may have created further problems.
72.School reports and reports from the mother note behavioural problems with [the daughter]. The father has not observed any issues outside of normal child behaviour although he does agree that she can be very attention seeking at times. From interview with each parent, I formed the impression that they practice different approaches to parenting such that the father seems to prefer to pay little attention to attention seeking behaviour as a means of putting the behviour [sic] on extinction. While from the mother’s reports it would seem that she gives such behaviour attention by trying to rationalise with the child and thereby acting to reward the child and escalate the behaviour. Certainly, it is suggested that the mother address her approach to parenting in this regard.
73.It seems that the child’s behavioural problems became a concern around the time the parties relationship was breaking down. I formed the impression that the child might have commenced responding in negative ways sometime prior to final separation while she was exposed to a home environment where her primary care givers were constantly at odds with each other. It is of note that since separation it appears that there has been ongoing conflict regarding contact with contact frustrated by the mother.
74.The father was appropriate, warm and caring in his interactions with the [son]. [The son] responded to his father affectionately and appeared secure with him.
75.Presently, the supervised contact seems to be going well. The children seem to delight in their father’s company and he responds to them appropriately. The father presents as having a grounded, responsible parenting approach. He demonstrated good knowledge and skill in this regard.
RECOMMENDATIONS
76.That the mother remain residing with the children in [C];
77.That the children reside with the mother;
78.That the father have alternate weekend contact with the children at his residence, with the father’s partner to be present during contact at all times for an initial period of say 3 months;
79.That the father have telephone contact one day every week at a time agreed between the parties;
80.That both parents complete a parenting program within 6 months of the date of the new Orders;
81.That the matter be designated as a Magellan, 65-L, matter until such time as the supervisor deems supervision unnecessary.”
I will set out her evaluation and recommendations from her second report – paragraphs 72 to 87 hereunder:
“72.[The daughter] 7 years of age and [the son] who is 2, are the focus of a parenting arrangements dispute between their parents.
73.The report is provided with the understanding that there are no risk issues to consider. The previous allegations of sexual abuse against the father towards the [daughter] as noted in the previous report, were formally investigated and deemed unsubstantiated. Indeed at the current interviews the mother merely paid lip service to the past issue and importantly, did not volunteer any new information to suggest that this was a current concern. In this regard, she did not mention any issues with sexualised behaviour on the part of the [daughter] or any concerns whatsoever in relation to the matter. It is understood that the matter is no longer under investigation. Once again, however, the issue of abuse is a final matter for the Courts consideration.
74.Further, the reported recent disclosures by [the daughter] at school regarding an alleged statement made by the father, have not been followed up with by the authorities. Given this and the father’s presentation at interview, the report leans to the understanding that the matter is considered without substance. Indeed the father presented as frustrated at being constantly bombarded by new accusations and desperate to move on with his life. It would seem that he has been open to making an alternate weekend arrangement work.
75.It is of note that the mother’s focus both at current and past interviews was directed to the [daughter]. No concerns have ever been expressed regarding the [son]. Indeed it is important to note that where there are reports of distress and dysfunction with [the daughter] in relation to the father, there are no such reports or observations in relation to [the son]. Further, the mother did not report any concerns regarding the father’s parenting. While she provided information in such manner as to allude that [the daughter’s] current disruptive behaviour is correlated with those times she is to spend weekends with the father, she did not volunteer any information to suggest the basis of her implied premise. While [the daughter] initially presented distressed at the suggestion of seeing her father she soon settled. In the absence of any other information, I formed the view that the child may have likely been contaminated for some time leading up to the interviews.
76.[The daughter’s] emotional, social and psychological/cognitive development and wellbeing and the future of her relationship with the father, are a significant concern. She is presenting with a very disturbing attitude towards her father and has reportedly commenced displaying escalation in disruptive and challenging behaviour at school. The mother alludes to the notion that the father has caused [the daughter] to fear him due to alleged disclosures made by him to the child. However, from the information provided, the report leans to the understanding that [the daughter’s] extraordinary expressed attitude towards the father would seem derived from a source outside of the father’s influence. That [the daughter] moved from vehemently not wanting to see her father, claiming her hatred of him and levelling attacks at him, to, within 5 minutes, jumping all over him, laughing and playing and appearing completely detached from her previous cognitions, raises doubt as to the veracity of the mother’s implied premise and raises the question of ‘positive alignment’ behaviour on the part of the mother. Indeed, it appears abundantly clear that the mother does not encourage [the daughter’s] relationship with her father and I was left wondering the extent to which she might be actively directly or indirectly undermining the relationship. The child’s disclosures that she believes the father is a liar because this is what the mother has been saying and the mother’s disclosure of their house rule that if there is noting [sic] positive to say about the father then it is better not to say anything, and indeed that they hardly ever talk about him, may be seen to support this.
77.[The daughter] presents as a very confused little girl with increasingly entrenched dysfunctional psychological and social issues.
78.That the escalation of [the daughter’s] behaviour towards her father seems correlated with the time that the maternal grandmother has been staying with the mother during her exam period, raises the issue of her likely involvement in negatively influencing the child’s perception of the father. Indeed, it is important to note the estranging behaviour on the part of the maternal grandmother at the completion of interviews to the extent that the father was unable to say goodbye to [the daughter]. It is also important to note the historically poor relation ship between the father and the maternal grandparents. Further, [the daughter’s] apparent reliance upon the maternal grandmother to the extent of seeking her out for comfort in preference to the mother is another concern and raises issues of an enmeshed relationship.
79.From interviews and observations I formed the view that the [daughter] has a bond with her father that if given the opportunity in the absence of any negative influences and sufficient contact time should flourish. The father openly reports that while [the daughter] is unsettled initially at changeover, she soon settles as distance from the mother increases. Further from observations it appeared that despite her initial strong objection to seeing her father and resistance towards him, within a brief time [the daughter] appeared comfortable and spontaneous in her interactions with him and indeed appeared to delight in her father’s company.
80.The father was, as at previous interviews, spontaneous, appropriate and caring in his interactions with [the daughter]. He was certainly placed in a most challenging position listening to his daughter saying testing things and he should be commended for his excellent management of the situation in the sense that he did not push the child or fuel the situation but instead allowed the child to move independently through her process.
81.The father was appropriate, warm and caring in his interactions with the [son]. [The son] appeared to delight in his father’s company and responded to him in an openly affectionate manner. He presented as having a good attachment to the father.
82.The father presents as well settled into his new life with his de facto partner and it seems that they are able to work cooperatively and in the best interests of the children. During the group observations, the children all appeared to interact well with each other and with the father and his partner.
83.From observations it was clear that the children are securely attached to the mother. However, there is concern for an enmeshed relationship between the mother and [the daughter] and how the mother’s negative attitude towards co-parenting may be disruptive to [the daughter’s] otherwise positive psychological and emotional development.
84.The mother’s life may be seen as still in a state of flux as her desire to return to New South Wales remains and she does not appear to have established a network of friends. It is apparent that she remains heavily reliant upon her mother for support and seems enmeshed in that relationship. The report leans to the view that she is not committed to living permanently in [C] or facilitating a positive co-parenting relationship with the father.
85.The report leans to the understanding that the current parenting arrangements are insufficient in terms of facilitating a positive relationship between the children and the father. The view is offered that should such arrangement continue, [the daughter’s] relationship with the father will continue to deteriorate, as it seems, in the absence of any other information, to be impeded by outside adult influences. Also, there is concern for [the daughter’s] emotional, psychological and social development of which she is clearly already demonstrating dysfunction. Indeed I was left wondering about the future of [the son’s] relationship with his father and his childhood development should the status quo remain in place.
86.A shared care arrangement is not feasible or suggested in this matter due to distance between the parties’ residences and due to poor communication between the parties and the potential for conflict. The only options suggested are for the children to live with the mother and spend time with the father each alternate weekend or visa versa.
87.In the absence of the Court determining any abuse issues, the report leans to the recommendations that the children live with the father and have an alternate weekend arrangement with the mother. While there is concern for the children’s initial emotional responses should they live with the father, given the father’s demonstrated ability to appropriately manage and comfort the children and his apparent appropriate, caring and skilful approach to parenting, the report takes the view that the children would likely settle well given time and a nurturing environment. The father presents as being open to communicating amicable [sic] with the mother and parenting cooperatively. The reports lean to the view that the father offers great potential for encouraging a positive parent-child relationship, as the resident parent, than that of the mother and thereby greater potential for the children’s relationship with the non-resident parent to flourish.”
In her evidence before me, she said that she had never observed a child’s reactions like those of the daughter previously in her professional experience. She found them very concerning. She said that the mother really did require therapeutic intervention and there should be supervision of the mother’s contact. She said it would be more prudent to have some supervision and a review within six months. She said that a Contact Centre was appropriate because of observations and records. She said all the indications were that the mother was actively alienating the child and there was a strong influence from the maternal grandmother. She said the daughter’s presentation was quite extraordinary and that she required some ongoing therapy with a child psychiatrist.
Dr M provided a psychiatric report exhibited to an affidavit filed on 1 December 2006. Under the heading “Opinions”, she said:
“My assessment is limited to a psychiatric examination of the parties and a perusal of the material and I have not seen the children. At this stage, neither party is demonstrating a psychiatric disorder. There was nothing in the father’s history or presentation which would suggest a likelihood that he had abused the child. The behaviour described in the material is suggestive of inappropriate sexualisation and has been observed by others outside the family according to the mother. There is also evidence of a generalised disturbance in the report from [T] School which the child attends. My assessment did not enable me to come to any conclusion about the probability of the child having been sexually abused.”
Dr M gave evidence before me, after having been provided with the Family Reports and some further evidence, and opined that the child was very strongly allied to the mother and there was a major risk of leaving the children with the mother in that she may be alienating them from the father. She thought that supervised contact was appropriate and that the mother should seek psychiatric care. She thought the supervision should be reviewed within perhaps three months or so.
The professional opinions provided by Dr M and Ms T strongly support the views that I had formed with respect to the mother and her behaviour. Although I have not cited the whole of Ms T’s reports, to read them is somewhat chilling.
THE LAW
How a Court determines what is in the child’s best interests
See s 60CC set out hereunder:
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term
issues in relation to the child; and(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.”
Under the primary considerations, it is necessary for me to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. I have formed the view that it will not be possible for the children to have a meaningful relationship with the father if I leave them living with the mother. Secondly, I have formed the view that the children need to be protected from psychological harm from the mother and that the only way I can do that is to order that they live with the father. Both of those findings are based on the evidence that I have analysed in my Judgment under the heading “Evidence”.
With respect to additional considerations, any views expressed by the children in this case are not helpful. The daughter’s views have been so contaminated by the mother as to be unreliable and the son is much too young to express any views.
The nature of the relationship of the child with each of the child’s parents and other persons including grandparents is a matter of importance. As I have said, I am persuaded that the mother has sought to alienate the daughter from her father and am deeply concerned that she will attempt to do the same with the son if allowed. I suspect that the maternal grandmother has also done the same. I am hesitant to make a positive finding to that effect because I did not see her in the witness box. However, the observations of the report writer as to the grandmother’s behaviour support that view. The father appears to have a warm and loving relationship with both children once the initial ice is broken. It is clear to me that the initial reactions of the daughter are the direct result of the mother’s behaviour.
The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent is also a matter of importance in this case. I am persuaded that the father is prepared to facilitate and encourage a close and continuing relationship between the children and the mother but I am equally persuaded that the mother is not prepared to encourage a close and continuing relationship between the children and their father.
The likely effect of any change 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 is also important. Although the children have lived with the mother ever since separation and for some of that time, had close contact with the maternal grandmother, on the expert evidence I am persuaded that the children will adapt well to a change in their living arrangements and that, for the reasons I have already given, I have no choice but to order such a change.
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 is another matter of concern. The father and his de facto partner live in I and the mother lives in C. It is approximately a one-hour drive between the two centres. That is not a matter of immediate concern but the imposition of supervised contact is. That contact will have to be arranged at a Contact Centre in C and will require some expense and difficulty. However, in the circumstances of this case, at least in the short term, I can see no alternative but to make such an order.
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 is again important in this case. I am persuaded that the father and his de facto partner can provide for the needs of both children, both emotional and intellectual, but I am persuaded that by reason of the mother’s behaviour whether as a result of some psychiatric disorder or not, her capacity to provide for the emotional needs of the children is severely impaired.
The maturity, sex, lifestyle and background do not appear to have much significance in this case.
Neither child is an aboriginal child or a Torres Strait Islander.
The attitude to the child and to the responsibilities of parenthood demonstrated by either of the child’s parents I have dealt with already at some considerable length. The father has demonstrated an attitude to the children and a responsibility to parenting which is completely appropriate. The mother, on the other hand, has not.
Any family violence involving the child or a member of the child’s family – I am not persuaded that there has been any family violence.
Any family violence order – there is no current Family Violence Order in place. As I have indicated, one was made in the absence of the father and in circumstances where the mother deliberately misled the Court. It has no relevance, therefore, to my findings other than to the mother’s credibility.
I have to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. As will be seen, I have made some final orders and also some interim orders. It is impossible in the present case to make final orders having regard to the recommendations of the professional witnesses. It is necessary to have supervised contact and for the mother to undergo professional treatment and for those two matters to be assessed at some time in the future before final orders can be made. On the balance, I have chosen six months.
There does not appear to be any other fact or circumstance that I need to consider.
Section 60CC(4) and (4A) require me to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibility as a parent in a number of matters there set out.
For the whole of the relevant period, the parties were separated. During that period, the father has sought to maintain a relationship with his children. As I have found, the mother has sought to frustrate that in many, many ways. The most serious is when she unilaterally relocated the children to Sydney without the father’s knowledge or consent or the order of the Court. She, in my opinion, fabricated a sexual abuse allegation to justify that relocation. It is a matter of enormous significance in my opinion in relation to the mother’s lack of parental responsibility.
Lastly, I need to consider Section 61DA. I set out hereunder:
“61DA(1) [Presumption of equal shared parental responsibility] When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
61DA(2) [Where presumption does not apply] The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family0: or
(b)family violence.
61DA(3) [When making an interim order presumption applies unless not appropriate] When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
61DA(4) [Presumption may be rebutted] The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 61DA provides for a presumption of equal shared parental responsibility when making parenting orders. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. Abuse in relation to a child means:
(a)an assault including a sexual assault of a child which is an offence under a law written or unwritten in force in the State or Territory in which the Act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used directly or indirectly as a sexual object by the first mentioned person or the other person and where there is unequal power in the relationship between the child and the first mentioned person.
I have already found that there has been no sexual or physical abuse by the father against the child. I have found that there has been emotional abuse by the mother against the daughter but in my opinion, that does not fit within the definition of abuse in Section 4 of the Act.
Family Violence means “conduct whether actual or threatened by a person towards or towards the property of a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about his or her personal wellbeing or safety”.
I have already found that there has been no family violence by the father. There is no evidence that the mother’s behaviour fits that definition which is contained in Section 4 of the Act.
However, subsection 4 of Section 61DA provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In my opinion, the evidence overwhelmingly rebuts the presumption and I am satisfied that it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility.
I am satisfied that it is in the best interests of the children, as a result of consideration of the matters in section 60CC, that I should make the orders that are set out at the beginning of this Judgment.
Counsel for the mother submitted that the risk was not so great as to require the Court to change with whom the children lived and that it would be possible that the risk could be dealt with by the mother receiving therapeutic counselling. I reject that submission.
Counsel for the father submitted that I should make final orders requiring the mother to make a further application. I do not consider that appropriate either, having regard to the expert evidence.
Counsel for the Independent Children’s Lawyer submitted that I should make final orders with respect to with whom the children were to live but interim orders with respect to the issue of the children spending time with the mother, supervision and a review in six months. I am persuaded that is the course I should adopt. It seems the appropriate order to make, it accords with the expert evidence and it accords with commonsense.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith.
Associate:
Date:
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WOOLCOTT & EXELL
Key Legal Topics
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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Natural Justice
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Abuse of Process
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