Bailey and Pender

FAMILY COURT OF AUSTRALIA

BAILEY & PENDER

[2016] FamCA 676

FAMILY LAW – CHILDREN – Best Interest – Where the child should have a meaningful relationship with both parents – Where the mother is attentive and protective of the child - Where there were allegations of abuse of the child by the father – Where the child spent no time with the father for five months - Where the mother recognises that no time with the father is not in the best interest of the child – Where the father realises that equal shared time was not in the best interest of the child – Where the child has had a consistent relationship with the mother and an erratic one with the father –– Where the child should continue to live with the mother – Where supervised time with the father should continue and ultimately progress to unsupervised time steadily.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother is to have sole parental responsibility – Where the father is to have prior advice of decisions to be taken, inviting a response and taking his views into account.

Family Law Act 1975 (Cth), ss 60CC, 64B, 106A

APPLICANT:

Ms Bailey

RESPONDENT:

Mr Pender

INDEPENDENT CHILDREN’S LAWYER:

Grant & Co

FILE NUMBER:

NCC

719

2013

DATE DELIVERED:

17 August 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

3-6 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Graham

SOLICITOR FOR THE APPLICANT:

Resolve Family Law

COUNSEL FOR THE RESPONDENT:

Mr Murray

SOLICITOR FOR THE RESPONDENT:

Catalyst Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Frazer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Grant & Co

Orders

That all prior parenting Orders made in relation to B born … 2011 (“the child”) in this Court and in the Federal Circuit Court are discharged.
That the child shall live with the mother.

Parental Responsibility

That the mother shall have sole parental responsibility for the child.
That on each occasion that a long term issue involving the child, including but not limited to enrolment at school and specialist medical treatment, the mother shall:
4.1Advise the father in writing (including electronic writing) of her proposal and invite any comment or suggestion the father might wish to make within a defined time;
4.2Genuinely consider the response of the father; and
4.3Advise the father in writing of the decision she has taken.

Spend Time

The child shall spend time with the father as follows:
5.1Supervised time:
5.1.1For two hours each alternate Saturday supervised in the C Contact Centre unless another contact centre is agreed between the parties for a period of two months.
5.2 Unsupervised time:
5.2.1Thereafter for a period of six months on one day of each alternate weekend, and failing agreement on a Saturday from 10.00 am to 5.00 pm;
5.2.2Thereafter for a period of three months on each alternate weekend from 10.00 am to 5.00 pm on both Saturday and on Sunday of that weekend;
5.2.3Thereafter until the child commences Year One (the second year of formal education) each alternate weekend from 10.00 am Saturday until 4.00 pm Sunday;
5.2.4Thereafter from Friday after school to return to school Monday and each alternate weekend commencing and recommencing on the second weekend of each school term.
5.2.5
Commencing with the school holidays at the end of the second term in 2018 for one half of the NSW gazetted school term holidays being the first half in even numbered years from

10.00 am on the first day of the holiday period to 10.00 am on the mid point day; and the second half in odd numbered years from 10.00 am on the mid point day to 10.00 am on the last day of the holiday period.
5.2.6From 6.00 pm Saturday to return to school Monday on the weekend of Father’s Day if such a weekend falls at a time that the child is not due to spend time with the father.
5.2.7During the Christmas school holiday period, commencing on the first day of the holiday period in December 2018 and thereafter in each even numbered year for two weeks commencing on the first day of the Christmas holiday and concluding at 10.00 am two weeks later, such time to be suspended from 2.00 pm Christmas Day to 2.00 pm Boxing Day, and for two weeks in each odd numbered year (commencing January 2020) from 10.00 am on the mid point day of the holiday period to 10.00 am on the day two weeks later.
5.2.8In the event that the child’s time with the father would fall on the weekend of Mother’s Day, time on that weekend is suspended from 6.00 pm Saturday prior to Mother’s Day for the balance.

Changeovers

Other than as specifically set out in these Orders the mother shall deliver the child to the home of the father at the commencement of any period of time and the father shall deliver the child to the home of the mother at the conclusion of time.

Communication

The parties shall take all reasonable steps to ensure that the child can speak by telephone to:
7.1The father, each Tuesday that he does not spend time with the father at a time between 6.00 pm and 7.00 pm;
7.2The mother, each Tuesday of holiday periods when the child is with the father at a time between 6.00 pm and 7.00 pm;
AND for that purpose, the parent with whom the child is not staying shall telephone on the telephone number provided by the other parent.
Each parent shall ensure that the child is able to receive the call of the other parent.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number and mobile telephone number, and notify within seven days of any change.
The father may communicate by way of letters, mail and gifts and the mother will hand all such communication to the child.

Restraints

Each party is restrained from discussing with the child any legal proceedings including the Court proceedings and JIRT investigation with the child.
Each party is restrained from denigrating the other party in the presence or hearing of the child or permitting any third person to do so in the presence or hearing of the child.
That the father shall not travel outside the Commonwealth of Australia with the child:
(a) Before Order 5.2.7 commences operation; AND
(b) Thereafter shall only do so with the prior written consent of the mother.

Other Issues

In 2016 and in 2017 the mother may suspend time and communication between the father and child for a period of four weeks in each year to enable the mother to take the child away on holidays (including overseas) provided that she gives the father not less than six weeks notice in advance of the period to be suspended.
That within 60 days of these Orders, the father and mother shall do all acts and things and sign all documents necessary to permit a passport to issue for the child.
That the mother be solely responsible for all costs associated with the issue of a passport for the child and the passport to remain in the mother’s possession at all times.
That pursuant to s 106A of the Family Law Act, in the event that a party neglects to do any act or thing or fails to sign any document required to give effect to these Orders, then a Registrar or such other person whom is appointed under the Family Law Act is to sign such documents or do such things in the place of the defaulting party.
That the Registrar or other officer is authorised to execute any such necessary documents and/or instrument pursuant to the above Order upon being satisfied by Affidavit that refusal, neglect or default as the case may be, has occurred.

The Court Notes that

(A)The father has advised the Court through his Counsel of his intention to complete the Parents Not Partners course and has enrolled to begin on 3 June 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 719 of 2013

Ms Bailey

Applicant

And

Mr Pender

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders in respect of one child, a boy aged five years and three months at date of trial.
The applicant is the mother. Her household consists of herself and the child. She works at a local hospital. She is 41 years of age and the subject child is her only child. She does not have another partner.
The respondent is the father. He has an adult daughter aged 24 years from a previous relationship and she has a child, aged almost five. The father apparently has a new partner who does not live with him. She has two children, one of them a young adult. The father however lives alone. He works in the service industry but has previously been self-employed. He is 43 years of age.
The parties began a relationship early in 2010 and began living together three months later. The subject child was conceived straight away and was born early the following year. The parties remained together for 12-15 months before separating on a final basis early in 2012.
The child has lived with the mother since separation.

Applications

At the commencement of the hearing the application of the mother sought orders in the alternative as follows:
a)That the father spend no time with the child and communicate by way of letters, mail and gifts; or
b)
That the child spend time with the father, graduating over a period of years until overnight time commenced at the age of 11 years. Within

six months of the release of the report or a program of graduated time commencing with supervision until aged eight and moving to overnight time at age 11.
On 22 July 2015 the mother had filed a Notice of Child Abuse and Risk in relation to alleged inappropriate and intrusive touching of the child by the father. Those allegations relate to events in mid-2015 and caused the matter to be transferred from the Federal Circuit Court to this Court for inclusion in the Magellan Protocol.
The father’s position before the Court, until 15 April 2016, had always been that the parties have equal shared care moving to week about time and half school holidays when the child was old enough to go to school.
On 15 April 2016 the father filed his current Amended Response proposing equal shared parental responsibility, residence for the child with the mother and graduating pattern of time, unsupervised, progressing to alternate weekends after approximately four months.
During the course of the trial the mother revised her position such that she withdrew that part of her application which proposed no face-to-face contact and communication.

Relevant Events Following Separation

The child was approximately one year old when the parties separated. By agreement he spent time with the father on Sundays from 10.00 am to 5.30 pm.
The mother asserts, and the father denies, that when the reconciliation proposed by the father in 2012 did not come to pass, that he threatened to commit suicide and the mother became concerned for the safety of the child in his care in those circumstances.
In the Memorandum to Court prepared by a Family Consultant in May 2013[1] the father is reported as having acknowledged “threatening self-harm after relationship ended”.
[1] Memorandum, Exhibit A Federal Circuit Court of Australia, dated 28 May 2013
Also tendered into evidence in these proceedings was a hand-written document of the father referred to as a ‘draft Will’, signed and dated 11.05 pm on 9 October 2015.[2] The mother says she found the document on her lounge. The father does not deny that that may have happened but asserts that it perhaps fell out of his bag rather than having been deliberately left there. It seems unlikely.
[2] Exhibit 12
Despite his denials, I consider it more likely that the father did make a threat of self-harm to the mother at that time.
Thereafter the child spent time with the father again, initially supervised by the mother on three occasions on Sundays between 10.00 am and 5.30 pm. The mother then concluded that there was no risk to the child and time proceeded unsupervised on Sundays as before. Her conduct is consistent with having had fears for the safety of the child.
At Christmas 2012 the father kept the child with him overnight without the prior agreement of the mother.
In January or February 2013 the parties attended mediation in an attempt to come to some agreement.
A document was brought into existence but no final agreement was achieved.

Father’s complaint to Police

On 29 March 2013 the police received a call from the father in relation to his report of suspicion that the mother was abusing the child.[3]
[3] Exhibit 13
The father conceded that he had made such a call, but gave evasive answers not candid ones in cross-examination. For instance, the proposition was put that he had made complaint to police about the mother abusing the child,
The father said “no; I contacted police.”
Question“you said ‘abuse’?”
Answer“no, I don’t remember a conversation with the police.”
Question“Did you phone the police because you couldn’t see [the child]?”
Answer“yes.”
I suspect from his emphasis on the word conversation, that the father left a recorded message rather than speaking directly to a police officer.
The police responded by attending the father’s address and found no one at home.[4]
[4] Exhibit 13
Subsequently police followed up with the mother for a welfare check on the child and the matter went no further.
I have concluded having listened to all of the evidence that the father made the complaint to the police in a strategic way because he was planning to commence Court action and may have believed that such a call would assist his case.
There is no evidence to support abuse of the child by the mother.
On 1 April 2013 the father collected the child from the mother at 9.00 am. It was Easter Monday. The father said he would return him at 7.00 pm. In fact the father retained the child overnight without prior discussion with the mother. I conclude he had formed the prior intention to do so.
The father told the Family Consultant in interviews in September 2014 for the first Family Report that he had “kept [the child] in his overnight care in April 2013 because he wanted to take [the child] on a particular outing”.[5] The particular outing he had in mind was to go with the child, and his daughter’s same age son, to the Sydney Registry of this Court to obtain advice about commencing court proceedings.
[5] Family Report dated 17/09/2015, par 39
The father returned the child to the mother on the evening of the following day, however, the mother had been worried by the child being kept overnight unexpectedly and concerned about when he would be returned.
Whilst the father was in the Sydney Registry of this Court, the mother was in the Newcastle Registry of the Federal Circuit Court filing her own application for recovery of the child.
On 4 April 2013 the matter came before the Federal Circuit Court and interim Orders were made for the parties to see a Family Consultant and for time between the child and the father, each Sunday from 9.00 am to 6.00 pm and each Tuesday from 5.30 pm to 7.30 pm.
On 18 April 2013 the police finally made contact with the mother in relation to the father’s complaint which had been made three weeks previously. The visit by police to the mother’s house resulted in a report that “child appears fine”.[6]
[6] Exhibit 13
I accept the proposition put by counsel for the mother to the father that the mother must have been surprised and shocked at the arrival of the police.
The father gave evidence that he thought it was a good idea to telephone the police in that way.
There is no basis in the evidence for me to understand that response or to accept its premise. To complain that the mother abused the child, without any basis for complaint, was manipulative and not at all focused on the needs of the child.
On 20 May 2013 the parties attended on a Family Consultant and were interviewed separately. No agreement was reached on that occasion and the Family Consultant noted that the issues impeding resolution were poor communication and a dispute over child support. That dispute, or at least dissatisfaction, continued at the time of this hearing.
On 23 August 2013 further Orders were made in the Federal Circuit Court appointing an Independent Children’s Lawyer and putting in place arrangements for inspection of the father’s home as a safe place for the child given the mother’s assertion that the father was a hoarder and the house was dangerously cluttered.
There was a Notation to that Order as follows, “the father has indicated he will do the Parents Not Partners course at Interrelate”. The father did not undertake that course.
The relationship between the parties appeared to deteriorate. The father did not comply in a timely way with the directions for the filing of evidence about his home. The mother would not make the child available for time with the father.
On 11 October 2013 the father filed a Contravention Application.
On 22 October 2013 the mother gave directions to the preschool which the child attended, which included a list of contacts in the event of the mother’s unavailability. The father was at the end of that list. I accept the mother’s evidence that she thought she was obliged to provide people who she could contact when the child was with her. However, it is also a reflection of the state of the parental relationship at that time.
On 7 November 2013 the father’s Contravention Application was withdrawn. Fresh interim Orders were made with time for the child to take place each alternate weekend from 9.00 am Saturday to 7.00 pm Sunday and each alternate Tuesday from 5.30 pm to 7.30 pm.
The matter was adjourned to March 2014 and on that date the father filed an Application in a Case seeking variations to the current Orders. It was the first of many applications; the father representing himself until this hearing before me.
In April 2014 the child broke his leg and was unable to bear weight for about six weeks. The accident which gave rise to the injury took place in the mother’s home. She called on the assistance of the father, unaware at first of the serious nature of the injury. The father took the child to hospital. The mother arrived from work when she learned of the broken bone. Thereafter, each of the parents and the maternal grandmother worked together in a co-operative way to provide care for the child throughout the period of his immobility.
On 7 April 2014 the matter was back before the Federal Circuit Court. Interim consent Orders were made reflecting some adjustments to the Orders. A Family Report was ordered.
On 28 April 2014 the father filed an Application in a Case which sought orders including this;
c)that the mother be required to swap weekends or days with the time the father sees the child if it is owing to training or work commitments that the father must be involved in on any semi basis, only with notice via SMS or email.
This was followed up by a proposal that if the father missed any time for that reason, the mother was obliged to replace it in full. In my view this represents an example of the father’s focus on his rights and entitlement rather than the impact on the child of some of his ideas and proposals.
In July 2014 the parties negotiated additional time for the father, after attending a mediation, in a pattern as follows: in week one, from Sunday 5.00 pm to Monday 6.00 pm and in week two, 5.00 pm Saturday until 6.00 pm Monday.

On 8 August 2014 there is a note in the kindergarten records[7] that the child hit his head; an ice-pack was applied and the father attended and provided comfort.[8] The mother had been unaware of that incident. I had the impression that she was pleased to hear about it.
[7] Exhibit 7
[8] Exhibit 7
On 14 August 2014 the father filed an Application for Review and also an Application in a Case seeking to again amend interim parenting orders.
As a self-represented litigant the father had become quite uncontained.
On 2 September 2014 the father filed an Amended Application in a Case seeking short service and proposing further interim Orders which reflected 50 per cent shared care. An Amended Response was also filed proposing that arrangement.
On 11 September 2014 the parties attended on interviews for the Family Report.
Eleven days later, on 22 September 2014, the parties agreed to their own variation to the Orders, such that the child would spend time with the father on one weekend from Sunday to 7.00 pm Monday, and the other weekend from Friday afternoon to Monday afternoon.
On 26 September 2014 the Family Report was released.
The mother described the child as being “’totally unsettled’ when he returns from his father’s care, at times being angry, and that his play is disturbed”.[9]
[9] Family Report dated 17/09/2014, par 27
Both parents also raised the fact that the child was not speaking clearly and might require grommets in the future. The father re-expressed the view that the child’s speech was “a little bit backward”.[10] Subsequently, the parents learned that the child had a 30 per cent hearing loss which happily was rectified entirely by the insertion of grommets in mid the following year.
[10] Family Report dated 17/09/2014, par 42
The Family Consultant expressed the opinion that the mother presented as a “protective parent, who rightfully remains concerned that the amount of time that [the child] is currently spending with his father, is destabilising for a child of [his] age”.[11]
[11] Family Report dated 17/09/2014, par 29
In relation to the father’s view, the Family Consultant expressed the view that “despite the father wanting a significant relationship with [the child], that he needs to acquaint himself with the needs of young children”.[12]
[12] Family Report dated 17/09/2014, par 46
The Family Consultant recommended that the father complete a recognised parenting program immediately. The Family Consultant also firmly stated:
[The father], needs to recognise that his desire for an equal time arrangement will not meet [the child’s] current needs, and whilst it remains important that the father is consistent in the time that he spends with [the child], that [the child’s] overnight time with him will increase when it is age appropriate.
The father did not complete a recognised parenting program immediately. In his oral evidence he said that he had waited for the Independent Children’s Lawyer to tell him what course to complete. However, as previously stated, the father had indicated in the Federal Circuit Court in August 2013 that he would do the ‘Parents not Partners’ course at Interrelate.
Twelve months later when the Family Consultant told him of the necessity for such a course, he needed no further information in order to enrol in one straight away. I consider that the father pointed to the Order[13] made for the Independent Children’s Lawyer to nominate a course as a means of avoiding responsibility for having failed to do so. I consider that it is probable that the father saw no need for such a course and did not wish to undertake it at that time.
[13] Order 5 of the Orders dated 22/10/2014
On 21 November 2014 the father filed an Application in a Case and four days later, an Application for Review of refusal to grant short service in respect of that Application in a case.
On 4 December 2014 the Application for Review was adjourned.
On 19 December 2014 interim consent Orders were made with some variation of parenting arrangements and directions to manage the interim applications outstanding. The mother was obliged to file an affidavit setting out the need for the child to have surgery, inserting grommets. Orders were made in respect of that surgery taking place and directing the conduct of parents before and after the surgery.
In June 2015 the father completed a Triple P parenting program and gave oral evidence that he found it helpful.
On 13 June 2015 the child had the grommets inserted.
On 17 June 2015 the mother invited the father to attend a movie with herself and the child in an attempt to address the fact that the father had missed a weekend with the child.

Allegations of abuse of the child by the father

On 29 June 2015, a Monday, a set of events unfolded which have culminated in the final proceedings in this Court.
The mother asserts that the child came home from a period of time with the father, including overnight. He arrived home about 6.20 pm. She bathed him and put his pyjamas on. Sometime after that, the child is alleged to have said to the mother, “Mummy, my bottom hurts”.
The mother then asked questions, identifying possible causes based on her knowledge of the child having suffered episodes of constipation, on four or five occasions in the past. She asked the child, “So why does your bottom hurt?” and in her oral evidence, said there had been no reply to that question. She then asked, “Has someone touched your bottom?” The child answered, “Yes, Daddy”.
The mother felt shocked and immediately concerned that there may have been wrongdoing. The mother asked the child:
Mother: What did he do?
Child:He put his finger inside.
Mother:Is that why it hurts?
Child:He took it out and put it back in, it hurt when he moved it inside.
The mother said that she had inspected the child’s bottom and could not see any broken skin or excessive redness.[14] The mother said, and I accept, that she felt shocked. I also accept that at that point she was not sure what had happened but was worried that the father had abused the child.
[14] Affidavit of the mother filed 14/04/2016, par 75
The mother booked an appointment with the general practitioner, which was the following Thursday, 2 July 2015.
The child was due for an inspection of his ears to see how they were healing after the grommet surgery. The mother had apparently told the doctor in advance of what the child had said and what her fears were because after the inspection the doctor said to the child, “There was another reason you came to see me, wasn’t there?” and the mother replied, “Yes there is”. The doctor then asked the child if she could look at his bottom and the child agreed. The doctor did not see any external damage or unusual irritation.
The doctor asked the child some questions as to whether anybody had been touching his bottom and the child replied, “Yes”, and otherwise allegedly repeated what he had already said to the mother. He denied the father touching his “doodle”.
The doctor gave the mother a letter of referral to the hospital and the mother attended there with the child that afternoon.
The mother and child were seen by a child protection social worker who made a referral to the Department of Family and Community Services (“the Department”). The mother was told she could wait at hospital or go home and wait for a call from the Joint Investigation Response Team (“JIRT”). She chose to go home.
On the next day, Friday 3 July 2015, the mother and child attended the JIRT team at D Town. The child was interviewed in the absence of the mother who was spoken to separately. The mother was told by JIRT that the child did not make a disclosure of concern but freely narrated an incident of what the JIRT team considered could have been a “game with Daddy”.[15] The child said he was dead and Daddy pressed a button on his bottom and brought him back to life and that it hurt when he pressed the button.
[15] Affidavit of the mother filed 14/04/2016, par 104
The file note record is clear that the child also said, “that no one stuck fingers in his bottom; that Daddy did not and if anyone did he would tell Daddy”.[16]
[16] Exhibit 8
A police officer member of the team told the mother that JIRT would not take any further action based on the information provided by the child.
On 5 July 2015 the child was due to spend overnight time with the father. The mother was concerned and asked for guidance from JIRT as to how she could protect the child “if something had actually happened” but he did not tell her (the police officer).
The JIRT officer reassured the mother:
We have no concerns about [the child’s] safety from what he has told us, however, if he says anything else, report it and talk to [the child] about who he can talk to if anything happens to him. If something has happened, having a discussion with the other parent may be enough for it to stop.
The officer advised the mother that the next step was for them to talk to the father about the allegations and the disclosures the child had made and see what his response was. She told the mother that she would be advised once the father had been interviewed. The mother and child then went home. Reluctantly, worried but somewhat reassured by what she had been told, the mother provided the child for time with the father on Sunday overnight to Monday.
On Monday 6 July 2015, the mother was contacted by a JIRT officer explaining that they had been unable to contact the father and the mother supplied two more telephone numbers.
On Wednesday 8 July 2015, the mother had a scheduled parent/teacher meeting at the child’s preschool to discuss his progress since the grommet surgery.
The mother advised the child’s two main teachers of the disclosures the child had made to her in late June. She asked them to let her know if they see any inappropriate sexualised behaviour by the child or if he said anything to them of concern.
One of the teachers then told the mother that in the previous week she had “found [the child] and another child under a blanket together and [the child] was very suspicious when I asked what they were doing”.[17]
[17] Affidavit of the mother filed 14/04/2016, par 113
Clearly the teacher had not been concerned at the time, about the incident in the previous week, but the information probably added to the concerns of the mother and the preschool.
The record from the preschool is a note of that conversation:[18]
[The child’s] mum reviled [sic] during an interview that [the child] had told her his father had put his finger inside his bottom. We had responded with we had not seen any worrying behaviour at preschool.
[18] Exhibit 6
On 9 July 2015 a preschool teacher spoke to the child about protective behaviours and he repeated his statement “Daddy put his finger in my Bottom”. A report was made by the preschool.
On 10 July 2015, at preschool the child stated in the context of a Protective Behaviours Class “Daddy touched my doodle and I didn’t like it”. A Report was made to the Department.
From 10 to 13 July 2015 the child spent time with his father.
On 13 July 2015 the preschool told the mother of the child’s statement the previous Friday.
It is apparent that the Department regarded the preschool notifications as duplicates. The child appropriately, in my view, was not interviewed again.
From the perspective of the mother however there had been continuous disclosures and she was worried. She withheld the child from his father thereafter.
On 14 July 2015 the father was interviewed. He spoke freely to the Department, denied wrong doing of any kind.
On 22 July 2015 the mother filed a Notice of Risk setting out the conversations above.
On 24 August the father filed an affidavit denying misconduct with the child.
On 28 August 2015 the matter was transferred to this Court.
On 8 September the matter was allocated into the Magellan Protocol.
On 16 October 2015 the Magellan Report was released. The conclusion in the Report was that sexual abuse of the child could not be substantiated.

Conclusion about abuse

Having heard the evidence I conclude there is no basis for a finding of abuse of the child by the father. The father may have done something which hurt the child during a game such as was described to JIRT. There is no certainty about that.
The mother told the Family Consultant that she had undertaken general protective behaviours education with the child prior to the July 2015 disclosure and had become more specific with this education after it.[19]
[19] Family Report dated 14/12/2015, par 23
The possibility exists that the child having been given such a protective message by the mother duly reported an innocent event about his bottom. There is no certainty about that either.
The doctor who examined the child after the first disclosure concluded the inspection by telling the child, “You know it’s not okay for anybody to put anything inside your bottom, only you are allowed to touch your body”.
It does seem to me that the latter message is a potentially confusing one for a child, then aged four, given that both his parents, his grandmother, preschool workers, and other people responsible for his care, would inevitably touch his body, including his bottom and genitals, for all kinds of appropriate reasons including assisting him at the toilet and bathing.
On 30 October 2015, interim Orders were made for supervised time with a service which supervises out and about in the community.
On 31 October 2015 the father signalled that the service was too expensive for him to use and the supervision aspect was subsequently varied.
On 21 December 2015 the Family Report was released. The Family Consultant noted some concerns about what was described as,
… the father’s minimal insight and awareness that he has demonstrated with regards to his own feelings of loss and what appears to be a seeming battle with the mother over what [the father] considers to be his rights, rather than what might be best for the subject child.[20]
[20] Family Report dated 14/12/2015, par 40
Quite properly the Family Consultant stated that it was not possible for him to comment about the father’s innocence or otherwise regarding the sexual abuse allegations and again, quite properly, did not reinterview the child.
The Family Consultant noted that his observation of the child with the father was cordial but without expressed affection by father or child. At the end of the observation period the child ran to the door without having said goodbye nor did the father say goodbye to the child. It has to be said by that time that it had been five months since the child had seen his father.
The recommendation was that the father should spend a period of time being supervised with the child, either in a contact centre or with a professional supervisor. The Family Consultant was satisfied that the mother was not attempting to undermine the relationship between the father and child, indeed, he found the mother presented as “being genuinely concerned about [the child’s] welfare and not focused on obstructing the relationship between [the child] and his father”.[21]
[21] Family Report dated 14/12/2015, par 26
The primary concern of the Family Consultant appeared to be that the father needed to gain a greater insight into the developmental needs of young children in order to “contribute proactively to [the child’s] long term psycho social development”. I take this to mean that the father is not intuitive about the child, not instinctively attuned to the child’s needs and will need help to recognise behaviours and signals from the child which will require particular responses.
On 29 January 2016 the matter was set down for trial.
On 20 February 2016 the father began spending supervised time with the child on a fortnightly basis at a contact centre. These visits continued up to 30 April 2016. There were reports available up to 30 April 2016.[22] The reports are positive and that the visits provided an opportunity for the father to get to know the child better and to rebuild their relationship. The child became more affectionate and the father became more confident.
[22] Exhibit 5
On 29 February 2016 the mother filed her Amended Initiating Application seeking orders in the alternative.[23]
[23] Par 6 of these Reasons
On 15 April 2016 the father filed a Further Amended Response.[24]
[24] Par 9 of these Reasons
The matter was heard over four days commencing on 3 May 2016.

Evidence

The documents relied on in respect of the application were as follows:
The Mother
(a)Amended Initiating Application filed 29/02/2016;
(b)Affidavit of the mother filed 14/04/2016;
The Father
(c)Further Amended Response filed 15/04/2016;
(d)Affidavit of the father filed 15/04/2016;
Reports
(e)Family Report dated 14/12/2015;
(f)Family Report dated 16/09/2014; and
(g)Magellan Report dated 12/10/2015.

Oral Evidence

The Mother

The mother presented as described by the Family Consultant as a concerned and attentive parent. She has reservations about the father’s parenting skills but I am satisfied, would prefer to see the child enjoy a relationship with his father if it is safe and appropriate.
In addition to all the uncertainty and stress for both parties and the child around the allegations of abuse, the main problem does seem to have been a contest over the father’s commitment to equal shared time and the mother’s certainty that the child could not cope with that arrangement at a very young age.
The parties lived together for only two years and the child was 12 or 15 months at separation. There was a limited opportunity for them to understand each other as parents and that is consistent with the way this matter has proceeded.
I conclude that the mother is pleased that the supervised visits have been a positive experience for the child and is willing to engage, with some trepidation, in the relationship developing between father and child. I do not consider that the mother will deliberately undermine the relationship.
I do conclude that she continues to entertain some uncertainty about what gave rise to the child’s complaint to her late in June 2015. One possibility stated earlier is that with the best of intentions the mother provided protective education to the child and that he reported an innocent event “Daddy touched my bottom” which the mother interpreted as abuse.
It seems likely she will ruminate from time to time and monitor the child’s progress with his father, focusing on the child’s needs for the relationship and not on the father’s perceived deficiencies.

The Maternal Grandmother

The maternal grandmother spoke in affectionate terms about her daughter and the child and was certainly not negative about the father.
She expressed her willingness to assist in changeovers and agreed that there had been good cooperation between herself, her daughter and the father when the child broke his leg.
I have no doubt that the maternal grandmother has a close, important and affectionate relationship with the child and will help him in whatever way she can.

The Father

I conclude that the father feels resentful about the limits on the time he has spent with the child since separation.
The first topic on which he was cross examined was child support. The father pays a minimal amount, about $7 per week or less and there is an outstanding child support debt.
The proposition was put that an occasional payment would create goodwill between the parents “Why not give her some money?” The father’s answer, “I haven’t been asked to”, was a reflection of his overall resentment in my view.
The father also made some bitter remarks about the extent to which the mother was interested more in having a child than in having a relationship with him. That having been said, the father did show genuine commitment to the child during cross examination. No doubt the great number of applications that were made in the Federal Circuit Court were a burden to the mother, both financially and emotionally, but they certainly reveal his commitment to the child.

His behaviour in keeping the child overnight without prior notice to the mother and even more, his report to police of abuse of the child by the mother shows an immaturity in him which is a limitation on capacity. Conversation with the mother would have been a better approach in trying to explain to her just how disappointed he was to lose his relationship with his son, rather than to “pay her back” by the kind of conduct outlined above.
The Family Consultant expressed the view that if there was a reasonable period of time without further incident between the father and the child, that there could be a future possibility of decision making involving both parents.
It seems unlikely at this point, with the mother’s ongoing uncertainty about the father, and the father’s ongoing resentment about the past, that cooperative decision making is likely.

The Family Consultant-Mr E

The Family Consultant’s strong recommendation was that the next 12 months should be small steps, “use this next period of time to enhance the relationship”.

The Law

The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

The relationship between the child and the father almost slipped away in the second half of 2015. However, at time of trial the relationship was being successfully restored and the parents were beginning to accept that the child needed a relationship with both of them. Warmth and fun filled activities in a safe setting have made a significant difference.
The mother recognised that no time, whilst it would meet her desire to protect the child, was not in his best interest.
The father realised that equal shared time, whilst it might be fair to him and to the mother, was not in the best interest of the child.
There is a need to preserve those two most important relationships to the child and I conclude that the realistic way is for the mother to have sole parental responsibility for long term decision making with her advising the father of decisions to be taken, inviting a response and taking his views into account. It may be as the Family Consultant says that in time they will spontaneously consult but there is no evidential basis for the capacity to do so now.
The child should continue to live with his mother who has met his needs well and provided for him. Accordingly, she should be the parent who has that decision making but it is important that she complies with the advising and consulting aspect of that role.

Additional Considerations

Views expressed by the child

The child is a five year old boy. He could have no memory of his parents together and has had a consistent relationship with his mother and an erratic one with his father which has more recently become regular and predictable.
The child is too young to express a view about the arrangements for time and communication between himself and the father.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

The child has his most important relationships with each of his parents and with the maternal grandmother. It is likely in time that he could develop a real friendship with his sister’s child, almost the same age as him.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

The mother is working and meeting all of the financial needs of the child.
The father is paying minimal child support and has not made any other spontaneous contribution. It would greatly assist the parents’ relationship if the father was to give priority to contributing to the needs of the child financially to relieve the burden in that way on the mother.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

The mother is attuned to the child, attentive and protective of him.
The father is less attuned, partly through lack of day to day contact with him, but also because when the father becomes focused on his own goals, he has at times, lost sight of the child’s needs, for instance, when he kept the child overnight in order to take him along to a court registry to seek advice about commencing proceedings, without letting the mother know. Further, that he made a false report to Police.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

The child is five. He will commence school in 2017, at around the time of his sixth birthday. This older start at school is a result of a period of his life when he had greatly reduced hearing and did not speak or learn as readily as he would have. His hearing is now fully restored and his learning has rapidly progressed, but sensibly his start in formal education was deferred.

Any other fact or circumstance that the court thinks is relevant

The mother became genuinely fearful and concerned that the father may have abused the child in or around June 2015. As events unfolded and other third parties became involved, the mother became more concerned for reasons referred to in this Judgment.
Unfortunately the parents were unable to talk to each other to try to understand what had happened to the child. For instance, the mother when the child first made his first statement to her “My bottom hurts” assumed that this might be a medical issue of constipation which the child had suffered from in the past. When the father was interviewed by JIRT he too recalled episodes of constipation for the child which had been painful for him for short periods of time. The lack of trust between the parties meant there was no beneficial conversation for the sake of the child.
Each parent is now attentively moving forward to enable the child to continue to enjoy a relationship with each of them.

Conclusion

An order will be made for the child to live with the mother and for the mother to have sole parental responsibility with prior advice to the father of decisions to be taken and the opportunity for the father to express his views.
Time between the child and his father should, as recommended by the Family Consultant, progress steadily and not too rapidly.
A further period of two months of supervised time is sufficient given it started in February of this year.
Unsupervised time will progress over the following 18 months approximately until when the child commences Year 1, with extended weekends from Friday after school to back to school Monday morning in alternate weeks.
There is also provision for school holidays and other special time.
Provision has been made for changeovers by the parents to each other’s homes which will be a source of reassurance for the child.
There are also restraints particularly that both parents and third parties are restrained from discussing these proceedings and the past JIRT investigation with the child, also non-denigration.
There is provision for overseas travel by the mother for holidays and in due course by the father with the consent of the mother.
The Court noted that the father advised the Court during the hearing through his Counsel of his intention to complete the Parents Not Partners course and had enrolled to commence on 3 June 2016. That course designed to assist parents to cooperate as parents and to put behind them the reasons which caused their relationship to break down has been taken into account in the formulation of these Orders.
Orders are made accordingly.

I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 17 August 2016.

Associate:

Date: 15 August 2016

[2016] FamCA 676

17 August 2016

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Family Law

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