Baker and Borthwick and Ors

[2010] FamCA 1018

FAMILY COURT OF AUSTRALIA

BAKER & BORTHWICK AND ORS [2010] FamCA 1018

FAMILY LAW – CHILDREN – Alleged sexual abuse – Where after thorough investigation parties agree the father does not pose unacceptable risk of sexual abuse – Where child had disturbed early childhood – Where child lived primarily with maternal grandparents – Where agreed child would commence transition into mother’s primary care – Where child’s relationship with father troubled – Father’s injuries prevent him from providing a stimulating environment for the child for long periods – Child suffers anxiety – Child to spend time with the father on a graduated program of day visits culminating in overnight time on weekends – Role of Independent Children’s Lawyer discussed – Independent Children’s Lawyer must ensure his or her views are based on evidence and not on personal opinions about the case

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C(1), 61DA, 64B, 65AA, 65DAA, s 68LA(5)(a)

Goode and Goode (2006) FLC 93-286
Johnston and Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Marriage of A (1998) FLC 93-344
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
P and P (1995) FLC 92-615

APPLICANT: Mr Baker

FIRST RESPONDENT: Ms Borthwick

SECOND & THIRD RESPONDENTS: Mr and Mrs Borthwick Senior

FILE NUMBER: (P)NCC 1635 of 2007

DATE DELIVERED: 16 November 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATES: 20, 21, 22, 23, 24 September and 6 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr I Duane

SOLICITOR FOR THE APPLICANT: Barbara Garrick & Associates

SOLICITOR FOR THE FIRST RESPONDENT: Mr G Garside

COUNSEL FOR THE SECOND & THIRD RESPONDENTS: Mr Wilkinson

SOLICITOR FOR THE SECOND & THIRD RESPONDENTS: Philip W Hill & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Suppressed by order

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Suppressed by order

Orders

1. All orders made in relation to T (“the child”) born … June 2001 prior to 20 September 2010 are discharged.

2. Unless within three months the child has commenced to sleep overnight in his own bed at his mother’s home, Mr and Mrs Borthwick Senior (the maternal grandparents) shall arrange for the child to commence counselling with a cognitive behavioural therapist so as to address the child’s anxiety and his inability to sleep independently.

3. Any counsellor the child attends shall be given a copy of Dr W’s report prepared for this hearing and the Court’s judgment delivered 16 November 2010.

4. The interim orders dated 6 October 2010 shall continue until November 2011.

5. In addition to the arrangement provided for in interim orders dated 6 October 2010, commencing forthwith Mr Baker (“the father”) shall spend time with the child as follows:

   (a)from 28 November 2010, starting at 11.00 am until 2.00 pm and each alternate Sunday thereafter;

   (b)from 27 February 2011 the father’s time with the child shall commence at 10.00 am and end at 4.00 pm;

   (c)from 10.00 am to 4.00 pm on Father’s Day;

   (d)from the first weekend in November 2011 in which the father would, pursuant to the above orders, be spending time with the child, overnight time shall commence.  From that weekend the father’s time with the child shall commence at 12.00 noon Saturday and end at 4.00 pm Sunday;

   (e)from the first weekend in January 2012 when, pursuant to these orders the father would be spending time with the child, the child’s time with the father shall extend so that it commences at 4.00 pm Friday and finishes at 4.00 pm Sunday;

   (f)commencing from Term 1 2012 school holidays, during school holidays on those weekends when the child lives with the father, time will commence at 4.00 pm Friday and finish at 4.00 pm Monday, and

   (g)at such other times as the parties agree.

6. Changeovers shall occur at McDonalds Restaurant at K.

7. Until the child has transitioned into the mother’s fulltime care, it is the maternal grandparents’ responsibility to ensure the child is delivered to the father at the commencement of each period of time the child is to be with him.

8. Upon the child commencing to reside fulltime with the mother it is the mother’s responsibility to ensure the child is delivered to the father on each occasion the child is to spend time with him.

9. Nothing in these orders restrains the father from participating in activities at the child’s school or other extra curricular activities in relation to which parents are invited to participate.  In the event the father proposes to attend such an activity, he shall advise the party with whom the child resides this is to occur.

10. While the child is in the father’s care the father is restrained from using any prohibited drug.

11. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

12. The names of the Independent Children’s Lawyer and counsel instructed by him shall be suppressed on any further publication of this judgment.

13. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Baker & Borthwick and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IT IS NOTED that this judgment has been edited to promote the effect of the suppression order. 

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 1635 of 2007

MR BAKER

Applicant

And

MS BORTHWICK

First Respondent

And

MR AND MRS BORTHWICK SENIOR

Second and Third Respondents

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These are parenting proceedings in relation to T (the child) who is nine years old.  The child lives with his maternal grandparents, Mr and Mrs Borthwick Senior.  Until recently, his contact with his mother, Ms Borthwick (the mother) has been regular but supervised.  For about the last fifteen months the child’s time with his father, Mr Baker (the father) has taken place monthly at a supervised contact centre.  The child’s time with his father is supervised because it was alleged unsupervised contact would have exposed him to an unacceptable risk of sexual abuse.  The child’s time with his mother was supervised by her parents because of her history of drug abuse, mental health issues and the risk of exposure to family violence from the mother’s then partner.  He too was a drug addict.  Fortunately for the child, by the time this matter came on for final hearing, the mother had made dramatic improvements to her personal circumstances.  In short, she established she has been drug free for close to three years, no longer lives with her former partner, is in a healthy relationship with a new partner, has worked hard to maintain a reliable presence in the child’s life and has ably cared for the child’s baby half-brother.  Agreement was reached at the start of the hearing that it is time to commence the child’s transition from his maternal grandparents’ primary care to his mother.  The child has a wonderful relationship with his maternal grandparents but yearns to be able to live with his mother and half-brother.  Orders were made which will allow a gradual transition.  Although this is what the child wants, his troubled history with his parents has left him anxious, which anxiety evidences itself by it being difficult for him to be away from his grandparents overnight.

2. It had been the father’s application the child live with him.  He denied he sexually abused the child and contended the maternal grandparents and mother had demonstrated an inability to support the child’s relationship with him.  It was his view the Court would be concerned about the maternal grandparents’ role in the sexual abuse allegations made about him and the child’s stated opposition to spending time with him.  He remained to be convinced the mother had made the improvements required which would make it safe for the child to return to her primary care.  However, as my opening remarks record, at the commencement of the hearing the father abandoned his application that the child live with him and gave his support to the arrangements referred to.

3. During opening addresses I was advised the parties also agreed the father did not pose an unacceptable risk of sexual abuse to the child.  This concession was consistent with the evidence presented at that point and with the opinion expressed by a Consultant Child & Family Psychiatrist who had been appointed to investigate the child’s circumstances, including the sexual abuse issue.  Counsel for the Independent Children’s Lawyer informed the Court the Independent Children’s Lawyer adopted the parties’ view the father did not pose an unacceptable risk of sexual abuse to the child.  Thus, the central issue became how and at what pace the child’s time with the father should increase.  Because of the child’s anxiety and his stated opposition to spending time with his father, resolution of this issue was not without difficulty.  The degree of difficulty was compounded by a volume of evidence which pointed to the child generally enjoying time with the father at the contact centre and remarks made to neutral people he missed his father. 

4. On the afternoon of the second day of the hearing, the Independent Children’s Lawyer withdrew his concession.  Thus, the nature of the case changed with the Independent Children’s Lawyer asserting the evidence would establish the father posed an unacceptable risk of sexual abuse to the child.  When the Court enquired of counsel for the Independent Children’s Lawyer whether additional evidence had come to light or there was another reason for this about face, the Court was advised a conference had taken place that day with a former family consultant and it was her strong opinion the father had sexually abused the child.  Thus the Independent Children’s Lawyer adopted her view.  This is a matter to which I shall return.

5. I indicated before the evidence continued, it was appropriate for the disclosure interview which had been undertaken by the New South Wales Police Service and the Department of Human Services (JIRT) team to be tendered.  To my surprise, counsel for the Independent Children’s Lawyer informed the Court the JIRT interview was not produced.  That is, the Independent Children’s Lawyer had not followed up production of the JIRT interview.  He had not seen it nor provided it to the Court expert.  On short notice, JIRT produced the DVD of their interview with the child.  This was viewed by the parties, their lawyers, the Court and was provided to the Court Expert.  The JIRT interview reinforced the parties’ agreement the father did not pose an unacceptable risk of sexual abuse to the child.  The Court Expert agreed.  At the end of the hearing the Independent Children’s Lawyer reverted to his original position and joined in the parties’ agreement the father does not pose an unacceptable risk of sexual abuse to the child.  Although that factual issue was ultimately resolved and a position adopted with which the Court agrees, because of the way aspects of the case were conducted by the Independent Children’s Lawyer, it will be necessary to discuss this matter in some little detail.

6. In closing addresses, the Independent Children’s Lawyer submitted the Court should make interim orders for the child to have supervised time with the father and, if an unidentified counsellor was satisfied the child should have unsupervised time, this would commence in about six months.  None of the parties supported this approach adopted and were keen to finalise the litigation.  The mother and maternal grandparents put forward constructive proposals which would immediately progress the child’s time with the father and, with their active involvement, show him their support for his relationship with the father.  By agreement, the father is to be included in various activities, including attending basketball and swimming events with the maternal grandfather and child.  Once these have started the mother plans to have the father join her and the child for a meal and probably skate boarding.  These are activities the child enjoys and which the adults agreed were likely to maximise a successful transition from a contact centre to unsupervised time.

Background facts

1. Unless I have stated differently throughout these reasons, the balance of probabilities will determine findings of fact (Section 140 Evidence Act 1995 (Cth).

2. It is fortunately unnecessary to make detailed findings in relation to the child’s early years.  Neither the mother or father were able to give clear detail about the child’s care during his early years, in particular which of them was primarily responsible for his care and the periods during which the child resided with the father.  In relation to these early years, it is sufficient to take a broad brush approach.

3. In 1952 the maternal grandfather was born.

4. The maternal grandmother was born in 1956.

5. The father was born in 1972.

6. The mother was born in 1983.

7. In 1998 the mother and father commenced a relationship.  The mother was 15 and the father was 26.  From that time and for about the next six years they had an on and off relationship. Throughout this period they each had relationships with other partners.

8. The child was born in June 2001.  The mother and father’s relationship had ended some months earlier.

9. It appears that when the child was about seven to eight months old the mother and father re-established contact and stayed together with the child for about two weeks.  When their relationship ended again, contact between the child and father stopped.

10. When the child was about 18 months old, the mother and father’s relationship resumed and for the following six months, the father spent most days with the mother and child.  Again the mother and father’s relationship ended and there was another gap of six to seven months when the father did not see the mother or child. 

11. During 2003, for a period of four to six weeks during which the mother and father’s relationship resumed, contact between the father and child occurred daily.

12. The mother and father’s relationship ended in October 2003.  The father tried to maintain contact with the mother and child but was unable to do so.  He called the maternal grandparents’ home on a number of occasions and was advised they were unaware of their daughter’s and the child’s whereabouts.  While that information may have been correct in relation to the mother and, on occasions the child, it would appear the child had begun to spend significant amounts of time in their care and they were somewhat ingenuous in the way they responded to the father’s enquiries.

13. In November 2003 the father commenced proceedings in the Federal Magistrates Court for orders the child live with him.

14. On 11 February 2004 interim orders were made that the child lives with the mother and spend time with the father each Saturday from 10.00 am until 4.00 pm.  More often than not the father spent time with the child as ordered.

15. On 17 December 2004 the mother and father agreed to final parenting orders, which essentially provided that the child live with the mother and spend time with the father overnight on Wednesday and for two nights each alternate weekend.  Provision was made for the child to spend time with the father on special occasions, such as Christmas.  The effect of these orders was that the child’s time was divided between his mother, his father and maternal grandparents.  It was a very disruptive arrangement for a three and a half year old. 

16. The father spent time with the child in accordance with the orders until around June 2005.  After that, the father’s time with the child drastically reduced, with the mother variously leaving notes on her front door to the effect the child was unwell, was not present or provided some other excuse.  

17. By November 2005 the father was seeing the child no more frequently than once or twice a month.

18. The father sought legal advice and in February 2006, his solicitor wrote to the mother and pointed out contact had not occurred since early December 2005 and informed her unless she complied with the orders, the father would commence contravention proceedings.  The mother did not comply with orders and on 27 March 2006 the father filed a contravention application.

19. In mid June 2006, by way of consent, the orders were varied so that the father would have the child each alternate weekend from Friday morning until Monday morning and for the day each Wednesday.  Provision was also made for the child to spend time with the father during school holidays once he commenced school.

20. In accordance with the June 2006 orders, the father and child resumed spending time together and until October 2006, the father saw him regularly.  Thereafter, once again the child’s time with the father started to fall away.  Although the father routinely attended the contact changeover point, the mother failed to make the child available.  She was abusing drugs and in a violent relationship and more and more the child was in the maternal grandparents’ care.

21. On 23 May 2007 the father commenced further proceedings in the Federal Magistrates Court, in particular, contravention proceedings and an application that the child live with him. 

22. On 14 August 2007 further orders were made by consent.  In essence, the father’s contravention application was adjourned to 11 October 2007 for hearing and it was agreed the child would resume spending time with him.

23. In accordance with the 14 August 2007 orders, during August 2007 the father attended the child’s school on a number of occasions to collect him.  The child was very distressed and refused to leave with him.

24. In early September 2007 the maternal grandfather said the child spoke to him about the father being “naughty”.

25. On 3 October 2007 the maternal grandparents obtained a referral from their doctor for the child to attend counselling with a psychologist.  Although they said they had sought advice from their doctor about the child’s ‘naughty’ reference to the father, there was no mention of this on the referral.  The maternal grandfather also said he sought advice from the Department of Human Services (DoHS).  DoHS records were produced under subpoena but contained no record of contact with the maternal grandfather nor of a Child at Risk notification from the doctor.  Doctors are mandatory reporters of child abuse and if the maternal grandfather had discussed a possible child sexual assault disclosure with the doctor, the doctor would be obligated to notify DoHS.  Although it was accepted DoHS records may be incomplete, it is unlikely two notifications were omitted.  In my view the likely explanation is the maternal grandfather sought generic advice and did not indicate the child had make remarks which others, but not he, might have interpreted as indicative the child may have been sexually abused.   

26. On 11 October 2007 the mother failed to attend the Federal Magistrates Court.  On the father’s application, a warrant issued for her arrest and a Recovery Order issued for the child. 

27. Police arrested the mother on 12 October 2007.  I infer she told them the child was in her parents’ care.  She was refused bail and understood she would be taken before the Federal Magistrates Court on 15 October 2007.  Police attended the maternal grandparents’ home on a number of occasions that weekend.  They were not home and denied any suggestion they were trying to avoid the police.  I accept their denials.  At some stage over the weekend, the mother telephoned her parents.  She informed them of her predicament and that the child should be taken to the Federal Magistrates Court on Monday, 15 October 2007.  They sought legal advice and in accordance with the advice attended Court with the child on 15 October 2007.

1. On 15 October 2007, the mother was released from custody and the child was placed in the father’s care.  None of the parties anticipated the child would leave Court with the father.  The child was similarly unprepared.  He was distressed about leaving with his father, however, by the time they departed a nearby car park, the child had stopped crying and from the father’s perspective, settled into the notion he would be staying with the father for a while.  Although the family consultant said she interviewed the child that day, this was incorrect.  The child did not see or speak with the mother or maternal grandparents during the period he was with the father. 

2. The matter was again before the Court on 23 October 2007.  In the meantime, the maternal grandparents applied to intervene in the proceedings for orders that the child live with them and filed a Notice of Child Abuse.  The Notice of Child Abuse referred to remarks the child made to the maternal grandfather in early September 2007 about his father “being naughty”.  Having made this remark, when the maternal grandfather asked whether the father touched his penis or bottom the child became upset and did not answer.  The maternal grandparents considered there were a raft of explanations other than sexual misconduct which may have explained the child’s remark and distress.  However, on advice they appropriately filed the Notice of Abuse.  This is how the spectre of sexual abuse arose.

3. On 23 October 2007 the Federal Magistrates Court granted the maternal grandparents leave to intervene in the proceedings.  Interim orders were made which suspended all existing parenting orders, ordered the child live with the maternal grandparents, spend time with the father supervised by his sister Y, and restrained the mother from spending any time with the child.  The child was returned to the maternal grandparents at Court.  He was very upset when returned.  He had a welt on his bottom and his anus was chaffed and sore.  The child told the maternal grandmother he had not worn underpants while with his father.  She applied soothing cream to his anus and within a couple of days the redness and chaffing resolved.  So that it is clear, the child has never suggested his father did anything to him which might have caused the redness and chaffing observed by the maternal grandmother. The most likely explanation for this was inadequate attention by the father to the child’s hygiene.

4. On 30 October 2007, under the guise of s 11F, a Federal Magistrate ordered a family consultant to supervise contact between the child and each of his parents.  I observe that other than for the purposes of preparation of reports, it is not generally regarded as part of a family consultant’s work to supervise contact between children and parents.  This is what supervised contact centres are for.  In any event, Ms R was the family consultant appointed to work with this family.

5. Supervised visits took place between the child and mother on 6 and 23 November 2007. 

6. Supervised visits between the child and father took place on 16 and 26 November 2007. 

7. On 7 December 2007, the family consultant interviewed the child.  According to her, the child disclosed he had been sexually abused by the father.  The family consultant, as a mandatory notifier, completed a Risk of Harm report, which she submitted to the DoHS.  In relation to the interview described above, she wrote: 

   [The child] in interview today repeated a disclosure he apparently made to the maternal grandfather that in the short period he was living with his father (as per court interim order) that the father insisted [the child] sleep in the same bed as the father and that the father touched his genitals ‘for a long time’ while [the child] was ‘half awake and half asleep’.  [The child] reports:  ‘Not liking this’ and did not raise it with the father next morning as ‘he would get angry’.  [The child] has had two supervised sessions with the father at the Court prior to this disclosure and reports he does not want to spend time with the father unless another adult is constantly present.  …  The disclosure by [the child] appeared quite genuine with use of age appropriate words and affect.  [The child] was observed in supervised time with the father to have an underlying aggression towards the father.  [The child] was much more settled in the supervised session with the mother. [My emphasis]

8. In her memorandum to the Federal Magistrate dated 9 December 2007, she reported on the same interview as set out below. 

   In interview on 7 December 2007, [The child] reported to understand that he is not spending time with the father ‘because of the bad things he did to me’.  Following gentle questioning [the child] disclosed that the father had fondled [the child’s] genitals on one occasion when [the child] was residing with him.  [The child] made complaint that the father insisted [the child] sleep in the father’s bed with him even though [the child] preferred to sleep alone in his own bed.  [The child] reported the assault took place when [the child] was ‘asleep’ but that he knew it had happened because he ‘felt it’.  After some clarifying questions [the child] was able to describe that he was ‘half awake and half asleep’ and that the fondling continued over a ‘long time’ rather than a short time.  [The child] reported he did not feel able to object to this incident the next morning, as he believed the father would be angry with him for raising the issue.

   [The child’s] disclosure was assessed as genuine with the use of age appropriate language and age appropriate affect displayed while discussing the assault.  A report has been made to the Department of Community Services on the basis of [the child’s] disclosure to the Family consultant.  [My emphasis]

9. The family consultant concluded the memorandum with the observation:

   [The child] should not spend time with the father if the Court finds [the child] is at an unacceptable risk of future sexual assault by the father.  Even though [the child] reports that he would be prepared to spend time with the father in the company of a responsible adult, his relationship with the father does not appear to be of such strength that [the child] would be greatly negatively effected by not spending time with the father.

10. The family consultant continued her recommendations with a discussion about the effects upon children, who have been sexually abused, of contact with the perpetrator.  Given her statement that the disclosure was genuine, it comes as no surprise that there is no discussion about the possibility there may be alternate explanations for the child’s remarks or behaviour.  Nor does she address the steps the Court might take to preserve the relationship while the child’s remarks were investigated, for example by JIRT.  In short, although her recommendations were couched in terms of “if” the reality is, she addressed only one scenario.  Her failure to address other possible scenarios is troubling.

11. The family consultant did not write in her record of interview of 7 December 2007 the child’s words, or indeed her words, which preceded the child’s statement.  In cross-examination, she was asked what she and the child said.  She said the child told her the father “held” his penis.  She was unable to recall her words, which preceded this.  The family consultant was asked to reconcile this evidence with her report to the Federal Magistrate, which said the child disclosed the father fondled his genitals and her advice to DoHS that the child said the father touched his penis.  The family consultant said there was no difference between the words “fondled”, “touched” or “held” in a child protection sense.  It was her evidence these words can be used interchangeably.  This issue was raised with the Court Expert, Dr W.  He is a Child and Family Psychiatrist with many years experience, inter alia, in the child protection field.  Dr W rejected the notion the words under consideration can be used interchangeably in the child protection setting.  Indeed he emphasised that it is important to know precisely what the child said and, for this reason, for the remarks to be accurately reported.  According to him, even in the child protection setting, these words would be given their ordinary meaning.  Not only does this make good sense, it is appropriate on this issue to give greater weight to Dr W’s expertise.  Thus it is troubling the family consultant wrote in her memorandum to the Federal Magistrate that the child said he had been fondled by the father.  He said nothing of the sort. 

12. The proceedings were again before the Federal Magistrates Court on 13 December 2007.  The family consultant gave evidence and recommended against the father continuing to spend time with the child.  Interim orders were made which enabled the mother to spend supervised time with the child, no more than twice each week and restrained the father from spending time with the child. 

13. On 19 December 2007, further interim orders were made which enabled the maternal grandparents to present the child for interview by JIRT and, if JIRT recommended counselling, for this to occur.  The proceedings were then transferred to the Family Court.  Without having received the outcome of the JIRT interview, it is difficult to see how it would be appropriate for a court to approve unspecified counselling. 

14. JIRT interviewed the child on 22 January 2008.  They did not consider the child’s remarks warranted them interviewing the father or for police or DoHS to take further action.  They recommended counselling for the child, which commenced not long afterwards.

15. Dr W provided an updated report on 6 October 2010, in which he summarised the key components of the JIRT interview.  The reason this was done at that late stage was because the Independent Children’s Lawyer had not included it in the briefing material provided to Dr W.  There was no challenge to the accuracy of Dr W’s summary and, having viewed the JIRT DVD[1] I agree that the material contained in Dr W’s updated report provides an accurate summary of the salient portion of the JIRT interview.  Dr W wrote: 

    The interview lasted approximately 34 minutes.  … [The child] seemed in a light hearted (although perhaps somewhat anxious) frame of mind at the beginning.  The interviewer made the usual introductions, although she also made an unnecessary reference to underwear.  Various identification data was obtained and [the child] seemed to be attending well.  He noted that he was six and a half years old.  A very good vocabulary was evident and there was a certain precocity at times to his communication.  He was asked about truth and lies and seemed to have a clear understanding of the latter.  When asked to name his family, he referred first to his nanna and grandpa, then to such a long series of cousins and other adults that the interviewer questioned whether this was all true.

    He was asked specifically about his mother and referred to his father, saying ‘I don’t like my father’.  Initially he was not able to provide a reason for that but when pressed he said that if he did stay over, he would only want to stay until the afternoon.  His reason for this was that he would miss his mother and nanna and others in his family.  He was asked if there was any other reason and he could not think of one.  He was asked whether there were things that he liked at his father’s place and he said it wasn’t good.  He was asked if anything particular had happened and he indicated he could not recall anything except for yelling.  He was pressed on other memories.  He said his father used to take him places, including to friends whom he did not like.  He then asked if he could tell the interviewers about something naughty, and he said that his father had left him (alone) at night for quite a long time.  He was asked if his father had done anything else naughty and he said no.  He reiterated that he mostly does not like seeing his father because he misses his family and he does not want to visit.

    He was asked if he does anything at his father’s place that he likes and he said only riding bikes.  He was asked if he does things he doesn’t like and he said that he misses his family and other things.  He was asked again if his father does anything he does not like and he said not really.  He was pressed again on the same subject and he repeated that he did not like being left alone.  He went on to say that his father went to the pub where he sells pot.  He was a bit coy about what pot was, but described it as looking like dark grass and said that his father and his father’s friend refer to it as pot. 

    He was asked again if there was anything more he does not like at his father’s and he indicated nothing additional.  The interviewer then said that she had heard that there had been something he did not like when he slept over.  [The child] said he did not really want to talk about it because it was private.  The interviewer asked when it last happened and he said years ago, when he was about three.  He emphasised how long ago it had been.  The interviewer pressed him about it and he said he did not know because he was asleep.  He then said he could only remember that his father touched him on the penis, and he appeared a bit embarrassed.  He was asked basically what his father did and his first reply was that he did not really know, but he elaborated that it had happened at his father’s house in his father’s bed and that his father had squeezed his penis.  He was asked if he told anybody and he said he told his mother years ago and that is why it is in his treasure box.  He was asked about what he was wearing and said he had boxers and that his father had touched his penis on the boxers.  It sounded from what he said as if the touch had occurred over the boxers.  He was asked about the time of year this happened but he said he could not recall it, although he thought it might have been in the warmer weather.  He then described his (paternal grandmother) who can’t talk and whom he finds he can’t understand.  He added that his father smokes pot.

    He was asked if he had been squeezed any other times and he indicated it had only happened once.  He was asked again if he had spoken to anybody about it and on this occasion he said he had told his grandpa years ago (although it would have been only about two and a half months earlier).  He was asked if anyone told him what to say and he denied that this was the case.  He was asked for how long the squeeze had occurred and then he seemed to say that what he had been talking to his grandfather about was court, not the squeeze.  He later appeared to be asked again about how long he was squeezed and he made a response that sounded like he was squeezed on two occasions.

    [1]  Exhibit ‘C’

16. On 7 April 2008, JIRT wrote to the father and informed him no further action would be taken by DoHS. 

17. On 15 September 2008, orders were made which appointed Dr W as the Court’s expert to investigate matters in relation to the child.

18. On 24 November 2008, further interim orders were made which enabled the father to spend time with the child two hours each month at a Contact Centre and for the mother to spend time with the child, supervised by one of her parents, two hours at a time on three occasions each week.

19. Although the parties promptly completed intake procedures for the Contact Centre, a place for the family did not become available until May 2009. 

20. Because it had been so long since the child and father had seen each other, as a pre-cursor to his interviews, Dr W requested the family consultant to supervise a couple of visits between them.  The first of these visits was scheduled for 3 February 2009.  The maternal grandmother took the child to the meeting, unfortunately however, the father did not attend.  I do not know why.  The child was disappointed.

21. The next scheduled visit occurred on 5 March 2009.  This visit proceeded and was the first time the child had seen the father since October 2007.  The family consultant accurately described the child’s play as being rough and said she thought he was patronising of the father.  Again this description was apt.  The child was also affectionate and gave the father a kiss and cuddle.  It was notable to the family consultant the father placed few boundaries around the child’s play.

22. The third preparatory visit was scheduled for 7 April 2009 and took place as planned.  Again, the child was bossy with the father and his play was slightly aggressive.  When the father questioned the child about his play, the child called him stupid.  Nonetheless, the child also sought physical closeness from the father and spoke about seeing him in the future.

23. It was the family consultant’s evidence the child’s behaviour during these sessions was not consistent with him being afraid of the father.  She thought the child displayed a degree of ambivalence in his relationship with the father and said the child was both loving and hurtful towards him.  She was inclined to think theirs was a difficult relationship.  She agreed with counsel for the mother’s proposition the father would benefit from participation in a parenting program.

24. In May 2009, the father and child began seeing each other monthly at the Contact Centre.

25. On 17 August 2009, Dr W interviewed the parties and child in various configurations.  He spoke with each of them individually and observed the father and child together.

26. Dr W’s first report was released on 18 November 2009.  In his view, the sexual assault allegations were difficult to appraise.  He did not conclude the father presented an unacceptable risk to the child of sexual abuse.  In his opinion the most immediate concern and, inferentially the greatest risk, related to the child’s exposure to drug taking and domestic violence in the mother’s home.  As Dr W expressed it, the relevant question was whether the mother was, as she claimed to be, rehabilitated.  He pointed out:

    .…. However, [the child] has spent little unsupervised time with both [of his parents] and I think that the major determent of his anxieties are the uncertainties which both parents have brought into his life. 

27. It was Dr W’s recommendation the child:

    … remains residing with the maternal grandparents, but that if the Court is satisfied that the mother has genuinely made the progress that she alleges, the time that he spends with her should be gradually increased to include overnights quite soon. 

    Unless the Court forms a view that there is an unacceptable risk of sexual abuse, it is my view that orders should be in place for [the child] to spend time with his father on alternate weekends etc.  This probably does not need to be phased in too slowly.

    Because of my concerns about both of the parents and [the child’s] rather anxious and rather insecure manner, it is my view that this is a matter in which it would be appropriate to make interim orders and bring the matter back in 18 months time after further assessment.

28. Legal Aid NSW, who have funded all parties, directed the parties to attend mediation, which occurred on 11 March 2010.  Self evidently, the mediation was unsuccessful.

29. On the application of the Independent Children’s Lawyer, an order was made on 14 September 2010 for the child to be interviewed by Mr B, who is a Senior Social Worker.  Because the subject matter related to the child’s views, the interview did not involve the parties.  Mr B reported that the child,

    Declared a strong preference for his mother and the mother’s side of the family.  There was no equivocation about this, and he promptly and assertively declared when asked to rank his sense of closeness:  ‘I like them (everyone on his mother’s side) all first and Dad can come last for all I care.’ 

30. The child complained about seeing the father at the contact centre and denied he enjoyed contact with him there.  The child told Mr B he wanted to spend more time with the mother and see his maternal grandparents ‘whenever I want’.  He was confident he could manage the necessary change of schools and said he got along ‘okay’ with the mother’s new partner and his children. 

1. It was Mr B’s view the child was aligned with the mother and her family.  He found it hard to evaluate to what extent the child’s views had been influenced by others. 

General Law in parenting cases

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61A(4)). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.

   1.The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or 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.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(2) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately, the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA ‘consider’ means a consideration tending to a result, or to consider positively the making of an order (Goode and Goode (2006) FLC 93-286). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:

   (a)The time the child spends with the parent includes both:
   
   (i)         days that fall on weekends and holidays;  and
   (ii)         days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)       the child’s daily routine; and
   (ii)         occasions and events that are of particular significance to the               child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

6. The child’s best interests remain the overriding consideration.

7. Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.

General principles to be applied in determining abuse allegations

1. The legal principles to be applied in a case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. The oft quoted passages are found at pp 76-78 where the High Court held:

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

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

   His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

   No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (Marriage of M (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B (Access) [1986] F.L.C 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

2. By way of further elaboration of the civil standard of proof, the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 per Mason CJ, Brennan, Deane and Gaudron JJ said at pp 449-450

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Although the authorities discussed above were decided prior to the Evidence Act 1995 (Cth) they have been applied in decisions made subsequently. That they apply to cases such as this one was clearly stated in Johnson and Page (2007) FLC 93-344.

4. The onus of proof in the civil standard of proof in accordance with s 140 of the Evidence Act 1995 (Cth). The Full Court in Johnson and Page agreed with W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 and said a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”.

5. If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it.  Where none, rather than some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established.  Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.  The components, which go to make up that conclusion, need not each be established on the balance of probabilities.  The Court may determine that the constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard (Johnson and Page).  

6. The findings made in the assessment of risk addresses part of the Court’s responsibilities.  Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors.   In M v M at p 76 the High Court said:

   …the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.  The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities. 

7. If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events.  In Marriage of A (1998) FLC 92-800 at 84,996 the process is described thus:

   The first enquiry is whether there is objectively an unacceptable risk.  If there is the Court must take steps proportionate to the degree of risk.  If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.

The father’s circumstances

1. The father resides with his mother.  This was the home his parents built and where, for other than the two short periods the father lived with the mother, he has lived since he was four years old.  This is where the child has spent time with the father.  The house has three bedrooms, in relation to which one is used by the paternal grandmother, another by the father and the third is set up as the child’s bedroom.  The home is appropriately furnished and the child would have an appropriate standard of accommodation when with the father.

2. When the father was 12 years old he was seriously injured in a motor vehicle accident.  As a result of skeletal injuries suffered in the accident, he is in receipt of a disability pension.  About seven years ago the father’s mother suffered several strokes, which resulted in her losing the ability to speak and suffering other physical disabilities.  She has limited use of her right arm.  In addition to his disability pension, the father receives a carer’s allowance in relation to his care of his mother.  The father’s combined income is $865 per fortnight.  From this he pays his mother $300 per fortnight board and also purchases the household groceries.  From time to time, the father collects and sells firewood to a local publican. 

3. The father’s father passed away about six years ago.  He was a agricultural manager and, after the father completed year 9 at school, he worked with his father until he was about 18.  This job came to an end when, because of ill health, his father was unable to continue as the manager.  The father received a significant insurance payout, probably upon reaching his majority, which enabled him to buy a block of flats.  He sold the flats and purchased a shop which turned out to be financially disastrous.  The net effect of these commercial decisions was that by the time the father was in his early twenties, his compensation payment was gone.

4. The father is one of three children, with two older sisters.  His sisters each have four children and it would appear the family is close.  The father’s sister, Y, for a time supervised his visits with the child.  Her supervision ceased when interim orders were made denying the father and child contact. 

5. In addition to the child, the father has two other children.  They are 15 years old and are the product of overlapping relationships.  One child, D, lives in the same town.  The father’s relationship with D’s mother ended before their son was born.  He has been raised by his mother’s partner as his own son.

6. The father’s daughter, A, lives with her mother in Newcastle.  The father last had contact with A when she was about seven.  When A was about three, there was an investigation about whether the father and his father sexually abused her.  After investigations were completed by JIRT and interviews for a family report took place, parenting proceedings between the father and A’s mother resolved with orders made which enabled the father to have unsupervised time with the child.  These orders were made by consent and with the support of the child’s separate representative.  It would appear these consent contact arrangements continued on and off for some years and then without further Court or other agency intervention, effectively ceased.  The father denied he behaved in a sexually inappropriate manner with A. He pointed out he was not interviewed by JIRT and that, after the matter was investigated, he continued to spend unsupervised time with her.

1. At some stage, many years ago, the father began to smoke cannabis to help him cope with pain in his hip.  He smoked two or three cones of cannabis a day and, for a time, took amphetamines.  Although the father denied he had ever been a heavy drinker, he has twice been convicted of driving with the prescribed content of alcohol and the probability is there have been times when he has consumed alcohol to excess.  The father now consumes between two and four schooners of beer a day.  According to the father, his drug use reduced when he took on his mother’s care.  The child was aware his father smoked cannabis, which suggests the father’s evidence he has not used drugs for about the last six years was wrong.  While I accept the father no longer uses amphetamines, it appears likely he still occasionally smokes cannabis about which the child is aware.  The father does not use a bong as described by the child, but uses a bucket with a water pipe which he keeps in a shed.  The father has two convictions for possession of drugs (cannabis), one in July 1995 and the other in August 2003. 

The mother’s circumstances

1. The mother resides with her partner, Mr G, and her son C.  This is a four bedroom home which the mother rents from her brother.  This home is available to the mother as a long term rental.  The child has his own room and the home provides a comfortable level of accommodation.

2. The mother and Mr G have been in a relationship for approximately 13 months.  They have lived together for about five months.  Mr G has two children, a boy who is 10 and a girl who is 8.  His children spend time with him during each school holidays.  They have met the child and get along well with him. 

3. C’s father is Mr H.  His relationship with the mother commenced at about the time the mother and father’s relationship ended.  Theirs was an on and off relationship which had more or less ended by the time C was born.  Although the relationship had ended, following C’s birth, he had reasonably regular contact with his father.  The mother’s relationship with Mr H was troubled and he too abused drugs.  The violence in their relationship was severe and on a number of occasions, police were involved to keep the mother safe.  The police records record Mr H being involved in aggressive incidents with other people as well.  To Dr W and the Court, the mother tended to minimise the difficulties which existed in her relationship with Mr H.  While this may partly relate to memory deficits, it appears she still struggles to acknowledge how chaotic and disturbing the child’s life was in her care.  For example, three times while in kindergarten the mother changed the child’s school. 

4. On a number of occasions between 2003 and 2007, the mother was admitted to hospital with drug induced psychosis.  There is evidence of her contemplating and, perhaps attempting, suicide.  Various doctors’ reports record the mother’s history as containing evidence she had conduct disorder associated with substance abuse, promiscuity, truancy, running away from home, herself being the victim of childhood sexual abuse, anxiety, severe withdrawal and auditory hallucinations.  Dr O, who has known the mother for many years, documented, “Considerable emotional instability, periodic psychotic symptoms and drug use episodically from 1998 until October 2007”. 

5. It would appear to be no coincidence that the mother’s substance abuse and difficult lifestyle changed when it was ordered she have supervised time with the child.  Fortunately for her and the child, she sought medical advice and counselling.  An underlying depressive disorder has now been treated with medication and therapeutic intervention.  At about this time, the mother ended her relationship with Mr H and moved in with a cousin, for about five months.  Since then the mother has been drug free.  She produced the results of fortnightly drug screens, which corroborate her evidence she has not used illegal drugs.  The mother is compliant with anti-psychotic medication and is constructively engaged with the Mental Health Nurses Incentive Program in the Upper Hunter Valley.  A report provided by them shows it is their assessment the mother is stable and it was their recommendation she spend more time with the child. 

6. The mother has also completed a ten sessions program designed for women who have been in violent relationships.  It is reported she “attended every session and has contributed in a positive way”.  No less significantly, the mother has competently cared for two year old C, who is proof that, not only have the mother’s circumstances improved but, as would be anticipated, so has her parenting capacity. 

7. Although the mother’s parents probably assess their daughter’s situation through rose coloured glasses, there is no doubt about their affection for her and willingness to help her as best they can.  Their relief the mother no longer abuses drugs and her mental health has stabilised was palpable.

8. The maternal grandparents were impressive witnesses.  The child is their first grandchild and from the outset they have done their best to assist the mother care for him.  When they assumed the child’s fulltime care, this was a temporary measure undertaken to keep the child safe and in the hope their daughter would improve her situation and resume his care.  This has taken longer than either grandparent anticipated.  Although the process for the child’s return to his mother’s primary care is underway, this is unlikely to be completed for quite a long time.  Irrespective of when this occurs, the maternal grandparents will remain intimately involved in the child’s life.  From his perspective, they are the cornerstone of his personal stability. 

9. When the mother was about 5 or 6 years old, she was sexually assaulted by her paternal grandfather.  When this came into the open, he committee suicide.  The mother’s parents consider this played a part in her later problems.  I agree this appears likely.

10. The maternal grandparents live in a five bedroom home on a three acre block of lakeside land.  As well as the child, their son and his partner live with them. 

11. The maternal grandparents are not enthusiastic about the fathers of their grandchildren.  The maternal grandfather described Mr H “as an average type of loser who is going nowhere” and although those terms were not used in relation to the father, it would appear they hold similar views in relation to him.  They are troubled by the mother, father and Mr H’s failure to complete school and, in relation to the parties, their lack of work ethic.

12. Although they tried to steer a reasonably neutral course in their dealings with the parties, they were alarmed when the effect of the Recovery Order was for the child to be removed to the father.  Not only were they troubled by what they perceived to be the father’s limited parenting capacity, but also the effect on the child emotionally and psychologically if he was removed from them and denied contact with the mother.  However, from when they became involved in the proceedings and themselves were subject to orders, the maternal grandparents have complied with orders and, even when the child has been reluctant to attend visits with the father, they have ensured these occurred.

13. In short, the child and his parents have a great deal to be thankful for how the maternal grandparents have cared for the child.  I have no doubt had they not intervened and assumed his primary care, his emotional, psychological and physical wellbeing would have been an even greater casualty.

Section 60CC(2) considerations

1. Section 60CC(2) comprises the primary considerations, subject to subsection (5), in determining a child’s best interests. Section 60CC(2)(a) concerns the benefits to the child of having a meaningful relationship with both of the child’s parents. The words “meaningful relationship” are not defined in the subsection. In Mazorski v Albright (2007) 37 Fam LR 518 at 519, her Honour described the words as meaning a “relationship or a meaningful involvement … which is important, significant and valuable to the child”. The Full Court in McCall & Clark (2009) FLC 93-405 accepted as appropriate these remarks. In McCall & Clark their Honours also said that the preferred approach to s 60CC(2)(a) is for the Court to consider the prospective benefit to the child of a meaningful or significant relationship.

2. Irrespective of the orders made for the child to spend time with the father, his relationship with the mother is unaffected.  There is no doubt the child loves the mother and yearns to spend more time with her.  The maternal grandparents strongly support the child’s relationship with the mother and will work cooperatively with her to help the child transition into her primary care.  The dramatic and sustained improvements in the mother’s parenting capacity since late 2007, makes it more likely than not that she will be able to maintain a warm and maternal relationship with the child which will be to his benefit.

3. Whether the child is able to develop and maintain a meaningful relationship with the father is more problematic.  To assess this, there are three particular factors which require consideration.    These are the father’s parenting capacity, the present state of the child’s relationship with him and the child’s views on the subject.  The father has never had primary parental responsibility, other than briefly, for the child and never for any other child.  In many respects he is a parenting novice.  During the hearing, the father was questioned about his views of the child’s relationship with him, including why the child told Mr B and Dr W he did not want to see the father.  The father was also questioned about the child’s aggressive play observed by the family consultant.  The father’s responses tended to take the form of a mantra which was along the lines that any problems in his relationship with the child, or accusations the child made about him, resulted from false ideas implanted by others.  The father seemed to be unable to reflect more deeply upon the effect on the child of the child’s unsettled and, to a considerable degree, traumatic early life. 

4. The father’s inability to grasp the difficult situation for the child vis-à-vis his relationship with the father can be demonstrated by reference to two matters. 

5. Firstly, in mid 2007, the father attempted to collect the child from school.  The child became so distressed the School Principal intervened and the child was taken to a room where he spent time with the father.  Having spent time with the father, the child still refused to leave with him.  The focus of the father’s evidence was upon what he perceived to be comfortable interaction between he and the child in the room.  He gave little regard to the surrounding circumstances and considered the Principal was wrong when she intervened when the child became distressed.  That the child was distressed was seen as irrelevant by the father. 

6. Secondly, the child was very distressed prior to the August 2010 visit at the contact centre.  It took a lot of coaxing by the maternal grandmother to persuade the child to enter the centre.  She was successful and the supervised visit which followed was reasonably successful.  Again, the father considered the child’s distress which preceded the visit to be irrelevant, with his focus solely upon their interaction during the visit.

7. Put simply, the father was only able to consider as genuine those remarks and behaviour by the child which were positive towards him.  He disregarded behaviour and statements by the child which were negative towards him as simply either fabrications or manipulation by others.  This black and white approach to a complex situation is troubling.  It throws into doubt the father’s capacity to appreciate the complexities of his relationship with the child or to build a relationship which incorporates not only his, but also the child’s perceptions about their relationship and the family situation. 

8. The child’s stated position is against continuing to spend time with the father.  Thus, in order for the relationship to be beneficial for the child, the father needs to be in a position to address the child’s concerns about this and to invest their time with the types of activities which the child finds enjoyable.  This, the father is capable of doing in small bursts.  I have real reservations the father would be able to maintain the level of physical and intellectual energy which this intelligent boy needs for more than relatively short periods. 

9. Later in these reasons I will discuss the nature of the child’s relationship with the father.  It is sufficient to observe at this point that the child’s relationship with the father is troubled.  The child does not presently value his relationship with the father and whether they are able to develop and maintain a valuable relationship is uncertain.  The approach adopted by all parties was, in essence, there are sufficient positive signs which point to the possibility the child could enjoy his relationship with the father and that it would be wrong to deny the child that opportunity.  With this approach I agree.

10. Section 60CC(2)(b) concerns the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence. Issues of family violence were of particular significance in the mother’s relationship with Mr H, both in relation to role model and risk issues. There is no violence in the mother’s relationship with her current partner. There is no violence in the maternal grandparent’s relationship or in the father’s home. While there is some evidence of violence in the father’s relationship with A’s mother and the mother, this is very much in the past and appears to have been connected to the father’s abuse of amphetamines. He no longer abuses amphetamines and lives a fairly quiet, non violent life. On balance, I am satisfied it is unlikely that the child would be exposed to family violence.

11. It is appropriate to again refer briefly to the allegation the father presented an unacceptable risk of sexual abuse to the child.  When Dr W interviewed the child, he said the child had a “very buoyant and animated demeanour.  He seemed to be quite alert, inquisitive and he had a good sense of humour.  He was quite imaginative in his play.  …  He was very keen on being the centre of attention and he made several demands to be interviewed again”.  Dr W said the child was very eager to speak to him and “almost every time that I came out to the waiting room to indicate I wanted to speak to one of the other adults, he pushed himself to the fore and basically demanded to be seen again.  In the event I saw him three times, the lengthiest being the first”.  It was apparent from Dr W’s discussions with the child, that the child was aware of the Court processes and the significance of his interview with Dr W.  The child was upset that the effect of the orders was that his brother “gets all his mother’s love because he is there all the time” while the child missed out.  The child told Dr W the reason this situation had come about was because the father told the Court the mother “was taking drugs, which he declared she was not”.  The child went on to make a litany of complaints about his time with the father.  These focused upon the father’s cannabis use, “druggo” friends and previously being left alone. 

12. In an interview process in which the child was thoroughly engaged and motivated to complain about the father, the child made no complaint the father behaved in a sexually inappropriate manner towards him.  Thus, Dr W directed the child’s attention to sleeping at the father’s home, which appeared to be designed to trigger any recollection the child may have of behaviour referred to in his discussion with the family consultant.  Notwithstanding Dr W’s prompts, the child made no reference to the father having behaved in a sexually inappropriate manner towards him, or even mentioned that the father may have held his penis.

13. The father recalled an occasion where the child wet himself in the night.  Although the family consultant said the child told her the father forced him to share his bed, she failed to appreciate the child had for a long time been anxious about sleeping alone.  When she interviewed the child, in spite of their valiant attempts to have him sleep in his own bed when at the mother’s home, he came to her bed and at his maternal grandparents’ home, he insisted on sleeping with them.  In the same way the other parties did, the father had encouraged the child to sleep in his own bed, however, this the child could not do.  I am not confident the family consultant accurately recorded the child’s remarks.  Nowhere in the other interviews which dealt with the child’s sleeping arrangements did the child suggest the father insisted he sleep with him.  This reinforces my satisfaction the family consultant’s notes about this discussion are not sufficiently accurate that I could be satisfied the child told her he slept in the father’s bed at the father’s insistence.  I am satisfied the father did not insist the child sleep with him. 

14. In any event, for part of every night when the child stayed at the father’s home, he slept in the father’s bed.  Some nights this is where the child went to bed and on others, during the night, the child made his way to the father’s bed.  It was on one of these nights the child wet himself.  When the father realised what had occurred, he dried the child and changed the child’s pyjamas and sheets.  The child barely awoke and was not upset by what had occurred or the father’s actions.  It was the father’s unchallenged evidence the child is a very heavy sleeper.  The father’s evidence about this incident is consistent with the remarks the child made in the JIRT interview.  It is consistent with the child requiring a lot of prompting from JIRT before he made any mention of his father having touched his penis.  It is also consistent with the child’s lack of concern in his discussions with JIRT and Dr W about his father having touched his penis. 

15. The family consultant was particularly concerned about the child’s distress when she saw him.  This was not triggered by the child’s statement to her that his father “held” his penis.  It was evident throughout their interaction.  Dr W said that when Ms R interviewed the child and saw him with the father, this occurred immediately after, from the child’s perspective, he had been kidnapped by the father.  The child also believed he was not allowed to see the mother because of lies the father told about her.  Against a disruptive background, Dr W was not surprised the child behaved in the manner observed by the family consultant.  He pointed out her observations and the child’s dealings with the father were different to those he observed and which occurred at the contact centre.  In short, the genesis of the aggressive play and distress observed by the family consultant lay in the child’s removal via the recovery order and the role he perceived his father played in having him removed from his maternal grandparents and mother.  Although the family consultant was aware of these matters, it would appear they did not feature in her analysis about why the child behaved in the manner he did. 

16. When the family consultant gave evidence she did so determined manner, particularly in relation to her opinion the child disclosed sexual abuse by the father.  Unfortunately, it is necessary to observe that not only was she mistaken about important aspects of her interviews, she appeared almost an advocate that the child had been sexually abused.  The approach which was adopted by the family consultant in her report to the Federal Magistrate, as I have already found, focused on only one scenario;  namely that the father had sexually abused the child. Clearly, this view was formed quickly and has been steadfastly maintained.  For the family consultant’s evidence on this issue to have been accepted as reliable, the deficiencies in her reporting what the child said would have to be overlooked, as would her failure to record what she said to the child, the vehemence with which she maintained she obtained a clear and genuine disclosure of sexual abuse in relation to which she failed to consider the whole of the circumstances and about which she failed to consider alternate explanations.

1. I am satisfied the father has not sexually abused the child.  

2. As I have already mentioned, the Independent Children’s Lawyer presented evidence in relation to a sexual abuse investigation conducted in May 1998, in relation to the father’s then three year old daughter, A.  The child’s mother had contacted DoHS because she was concerned the child was unsafe with the father.  The particular concerns related to his drug abuse and the risk of family violence.  She was also concerned the child may be left with the paternal grandfather, in relation to whom there had previously been allegations of child sexual abuse.  DoHS investigated the allegation in relation to which A was interviewed twice.  A proposed third interview did not take place because A’s mother failed to attend.  A was observed to have a very short attention span and was difficult to interview.  Given her age, this was not surprising.  From these interviews, she said the father had “touched her botty and pinched her boobies”.  A was unable to identify body parts but pointed to her genital area and breasts as being her “botty” and “boobies”.  When or where these events are said to have occurred was not disclosed.  Nor was their context.

3. The Court granted the parties and Independent Children’s Lawyer access to its file in relation to the father and A’s mother’s family law litigation.  At the request of the Independent Children’s Lawyer, the Court released to the parties an incomplete family report prepared after interviews which were conducted in September 1999.  This was because the Independent Children’s Lawyer submitted the report contained a first hand record of interview between the family consultant and A in which it was said she disclosed she had been sexually abused by the father.  This document records that A “clearly enjoyed seeing her father” and interacted with him in a way, which showed she was confident of his positive response.  It is reported the child said of the father, “… I used to have lots of fun but I don’t like him now”.  When asked why, the reporter wrote A “was clearly bemused and replied, I don’t know”.  During her separate session she stated, “I don’t want to see daddy, I just want to stay with mummy”.  When prompted to elaborate she said, “…. Because daddy showed me his bum and his willy and he’s not supposed to …. so I get upset if I see daddy”. This, according to the Independent Children’s Lawyer, was the verbatim account of a disclosure of sexual abuse.  It would appear, the Independent Children’s Lawyer was untroubled that this was a draft document which, on completion, would have looked very different from the few paragraphs provided. 

4. No attempt was made by the Independent Children’s Lawyer to call A, her mother, or the reporter.  I suggested to counsel for the Independent Children’s Lawyer it was important that the Court receive not only evidence which suggested there may have been sexually abusive behaviour but also evidence which may be exculpatory or which put the evidence into its proper context.  Thus, it was somewhat surprising this evidence was presented without the Independent Children’s Lawyer also presenting evidence that thereafter, A’s parents entered into consent orders for her to have unsupervised time with the father.  Or, that when that order was entered, the child was represented by a lawyer from the same office as the Independent Children’s Lawyer in this case. 

5. The evidence adduced in relation to A does not enable the Court to conclude the father behaved towards her in a sexually inappropriate manner.  At its most sinister, it would enable the Court to conclude she may have seen him naked, he may have pinched her “boobies” and he may have touched her near her genital area.  If these events occurred, where or when they occurred is a mystery.  They could easily have occurred as part of ordinary daily existence.  For example, while showering, changing or in relation to “pinching” possibly in play.  Dr W said this material was irrelevant to the issue of risk assessment.  That is, it was not, without more, indicative of a risk of sexual abuse to even A.  Nor, even when considered in combination with the evidence adduced in relation to the subject child, indicative of a risk of sexual abuse to him.  I agree.

6. Sub-section 68LA(5)(a) requires that an Independent Children’s Lawyer acts impartially in dealing with the parties. It is also important that the Independent Children’s Lawyer, when he or she does so, forms a view based on a proper evaluation of the evidence. This was emphasised by the Full Court in P and P (1995) FLC 92-615. In a discussion about the role of the separate representative, which was the term then applied to the Independent Children’s Lawyer, the Full Court said such a person should “ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal view or opinion of the case.” In addition their Honours emphasised the importance the separate representative to bring “all evidence relevant” to the child’s best interests to bear on the issue. That is to ensure in relation to abuse issues, the Court receives, for example, statements made by a child in context.

7. In this case the Independent Children’s Lawyer failed to adopt the approach required by legislation and case law.  It was an error of judgment to aggressively pursue a finding the father posed an unacceptable risk of sexual abuse to the child without considering and viewing the JIRT interview.  This was a key piece of evidence.  It was no less troubling that having identified the family consultant as a key witness in relation to this issue, the Independent Children’s Lawyer was not present while she was cross-examined.  Nor was he present while the father was cross-examined about this issue.  It appeared to be of little interest to the Independent Children’s Lawyer there may have been alternate explanations for the child’s remarks or that the father denied sexually abusing the child. I appreciate competing demands may make it impossible to be present throughout a hearing and ordinarily absence would not warrant comment.  However, in this case, given the stance taken by the Independent Children’s Lawyer in relation to the risk of sexual abuse, he should have been present to at least hear the evidence taken from the family consultant and the father on this issue.  In relation to A, regrettably it is necessary to observe some of the material relied upon by the Independent Children’s Lawyer had little or no forensic value and that no attempt was made to ensure evidence on this matter was put into context. 

8. It is not my intention to be critical of the Independent Children’s Lawyer for being interested in these matters.  These all required consideration prior to the commencement of the hearing.  However, as the hearing unfolded, it was clear subpoenaed documents had not been inspected and that JIRT material had not been obtained or viewed by the Independent Children’s Lawyer.  Thus, from the Independent Children’s Lawyer’s perspective, what appears to have occurred is a confused and ill considered approach to the case, particularly in relation to risk issues.  That the Independent Children’s Lawyer’s appreciation of the facts was confused was thrown into stark relief when the father was questioned about his father having committed suicide following a sexual assault disclosure by another family member.  Literally, the father’s jaw dropped when this was put to him.  It was the maternal grandfather who, for this reason, had taken his life and no relation of the father’s.  It serves no purpose to continue to critique the presentation of the Independent Children’s Lawyer’s case.  Suffice to say this hearing was prolonged unnecessarily and the parties put through an even more difficult hearing than would have occurred had the Independent Children’s Lawyer, as the parties’ lawyers and they had done, carefully considered the evidence in relation to the risk of sexual abuse.  Had he done so, having reviewed Dr W’s report, the JIRT material and the other evidence to which I have made reference, as an honest broker, the Independent Children’s Lawyer could have taken a role in setting the framework to re-establish the child’s relationship with the father in an unsupervised setting.

9. So that it is clear, I agree with the parties and the Independent Children’s Lawyer, the father does not present an unacceptable risk to the child. 

Section 60CC(3) considerations

1. The child says he does not want to spend time with the father.  His most recent statements to this effect are found in Mr B’s evidence.  The remarks recorded by Mr B are similar, although somewhat more vehement, to those he made to Dr W.  In the child’s interview with JIRT, he told them he did not want to visit the father for periods longer than during the day and not later than in the afternoons.  He explained he missed his mother and grandparents and disliked the yelling which he said occurred at the father’s home.   The child’s views have formed and been expressed in the context of what he perceived to be his father’s desire to take him away from his grandparents and deny him a relationship with the mother.  The parties and Dr W were basically agreed that since about October 2007, the child has believed he was in a fight with the father to keep his relationships and life with his maternal family.  Because of the child’s affection for his mother and affection and reliance upon his maternal grandparents, the outcome sought by the father was anathema to the child.  This spectre can only have been reinforced when the recovery order was implemented and the child placed, unexpectedly, with the father and thereafter denied contact with the mother and maternal grandparents.  Although that situation continued for only one week, from the child’s perspective it was an open-ended and deeply distressing situation.

2. It is appropriate to consider the child’s behaviour with and in relation to the father before determining whether his stated views are as strongly held as might otherwise seem to be the case.  Children who find themselves in the centre of intense parental conflict, have been known to wilt under pressure of this type and perceive that the only solution is to align him or herself with one side.  In this case, given the history of the child’s care prior to October 2007, it was no surprise the child aligned himself so strongly to the people who have been primarily responsible for his care and, in relation to the maternal grandparents, who competently cared for him.  My point is that although children align with one side in terms of their stated preferences, their unguarded behaviour may reveal their stated position is not necessarily a reflection of their genuine views. 

3. The Contact Centre notes documented the child’s visits with the father.  In relation to visits in 2009, Dr W reported the child’s interactions with the father at the contact centre could generally be described as them “spending very positive and animated time together”.  There was no indication of fearfulness or avoidance by the child, indeed the interaction was to the contrary.  This situation continued until August 2010, when in the lead up to that visit, the child was distressed and required enormous support from the maternal grandmother to be able to participate in the visit.  Once with the father, the child engaged companionably and warmly.  The child dismissed this as in effect, “what else could a kid do”.  That is, permit the father to engage with him.  However, although the child may not appreciate the subtleties, the child’s guard was down and he engaged companionably with the father.  It is my assessment, there are more positive elements to the child’s relationship with the father than the child is able presently to acknowledge.  This is a feature of the child’s young age and the complex family situation which has swirled around him virtually since birth. Thus, while I accept the child does not want to spend time with the father, I am not satisfied he has the maturity for these views to warrant significant weight.

4. In relation to the child’s relationships, Dr W said he:

   Observed a fairly similar level of interaction between the child and all three parties in this matter, including his father.   It is difficult to be certain whether this was an accurate reflection of his relationship with them, or whether there was an overriding desire on his part to please the adults.  However from the information available to me, I formed the view that the primary relationship in his life is that with his grandparents, that he has significant subconscious insecurity about his relationship with his mother, and that he is quite ambivalent about his father probably partly because of actual experiences that he has had with his father, but also because of things that he has been told about his father.

5. Dr W opined that the child idealises the mother.  Although the child feigned no recollection of the mother’s drug abuse and the very significant problems which occurred between her and Mr H, it was Dr W’s opinion he recalled and, in effect, tried to suppress these memories. When Dr W interviewed the parties, he discerned a strong antipathy by the mother and her parents towards the father, which views had been picked up by the child.  These factors had contributed to difficulties in the child’s relationship with the father.  Lest it be misconstrued that the difficulties present in the child’s relationship with the father all emanate from the maternal family, it is appropriate to recall the stop and start approach adopted in the early years by the father to his time with the child.  In addition, that the father’s parenting capacity is fairly limited and he has been quite content to have his mother and sister, to extent of their abilities, responsible for the child’s care when he has been with him. 

6. Perhaps because of his inexperience, limited financial resources and the lack of awareness of activities which might interest the child, the child’s time with the father prior to October 2007 was a fairly desultory experience.  The child is intelligent and active.  Far more so than the father’s injuries enable him to be.  With the maternal grandparents, on the other hand, the child’s time is enriched by activities which the child enjoys and finds stimulating.  Unfortunately for the father, to date the contrast between the type of lifestyles available between the two homes has resulted in the child deciding that time with the father is often boring.  Dr W described the father as fairly self centred, which opinion, with respect in relation to the father’s parenting, I agree. 

7. However the child is able to engage with the father at a level which the child enjoys.  This is evident from the contact centre notes.  This tends to suggest that for shorter periods of time the child is able to enjoy time with the father.  In the context of the approximate 15 months when the father was unable to spend time with the child, that there remained vestiges of positive elements to their relationship indicates that there were times before October 2007 when the child enjoyed his time with the father.  In my view, had the period prior to October 2007 been resolutely unappealing from the child’s perspective, after 15 months of no contact with the father, there would have been nothing positive to be seen at the contact centre.  Thus, although I am satisfied the child’s relationship with the father is troubled, there are positive elements which provide a framework upon which to build a better father/son relationship.

8. The maternal grandparents and mother are willing and able to support the child’s relationship with the father.  They realise it is important for the child to see they support the father’s role in his life.  Although this has taken some time to achieve, the mother and maternal grandparents impressed me as genuine, when they expressed the view the child needs to know and have a relationship with the father.  Thus, the maternal grandfather and mother are willing to include the father in activities with the child which the child enjoys and which would not place too great a strain upon the father.  Dr W was anxious about this scenario and concerned that it created the opportunity for the adults to denigrate each other in the child’s presence.  However, the situation with the adults has improved since Dr W saw them and there is little risk the maternal grandparents would be unpleasant to or in the presence of the father and child.  The father seemed grateful for this offer of support by the maternal family and he too, is unlikely to be unpleasant.

9. The next critical issue is the effect on the child of changing his circumstances, including separation from parents or any other person with whom the child has been living.  Because of the agreement reached in relation to the mother’s time with the child, change is inevitable.  The child’s ability to adapt to change is, however, compromised. Dr W described the child as “a rather anxious, insecure and attention seeking child who is eager to please”.  He pointed out the child had seen a counsellor for a period of 12 months, with the original referral predicated on the child’s obvious anxiety.  In terms of the child’s anxiety, Dr W explained this “has typically been manifested in the form of somatic symptoms such as abdominal pain and constipation, nightmares and insecurity at night”.  The maternal grandparents explained that the child’s counsellor had worked with him and them to address the child’s inability to sleep alone.  A strategy was devised which eventually resulted in the child being able to sleep in his own bed five nights in seven.  The child has refused to attend school camps and rejected invitations for sleepovers with friends.  After the orders were made which enabled the child to spend the night at his mother’s place, although this was attempted, the child was unable to stay overnight and returned to the maternal grandparents’ home. 

10. The child’s anxiety about being away from the maternal grandparents overnight is real.  Presently, his strongest wish is to spend more time with the mother and sooner, rather than later, to live with her and C.  Yet, even with this strong motivation, the child’s anxiety has overcome him and he has needed his maternal grandparents’ reassurance and comfort in their home.  It is difficult to know when the child will be able to overcome his anxiety about sleeping overnight away from his maternal grandparents’ home.  Dr W recommended that the maternal grandparents re-engage the counsellor who previously worked with the child to assist with strategies which may enable the transition to be achieved reasonably quickly.   Because of the child’s strong motivation it is reasonable to conclude that, even without therapeutic intervention, in the reasonably near future, he is likely to be able to start sleeping overnight at the mother’s home.  This should go a long way towards helping the child deal with his general anxiety about being separated from his maternal grandparents overnight.  In turn, this is likely to assist the child to eventually cope with overnight visits with the father.  If overnight visits with the father occur before the child’s anxiety about being away from the maternal grandparents overnight has resolved, it is almost certain that not only would that visit with the father fail, but that this would be a serious set back for their relationship.  So that it is clear to the father, this is not an issue about the father’s parenting capacity, but the importance of an appropriate response to the child’s anxiety about being away from his maternal grandparents overnight.  These findings support a graduated program of day visits, leading towards overnight time. 

11. The parties live in reasonably close proximity to each other and there are no impediments to the Court being able to structure arrangements for the child to spend time with the father because of issues of distance or cost. 

1. I have already referred to the father’s parenting capacity.  Because of the child’s anxiety the father’s capacity to meet his emotional needs is limited, as is the father’s capacity to assist the child academically, or provide him with a stimulating environment sufficient to maintain the child’s interests for more than a day or two at a time.  If the child was to stay with the father for more than a few days at a time, this is likely to lead to the vexing situation of the child being bored, which will only result in further pressure being placed on their fragile relationship.  The father is able to construct activities which should keep the child involved and able to enjoy himself for periods of up to a few days at a time.  The father’s physical injuries mean he is unable to participate in strenuous ball games with the child, or the child’s enthusiasm for skate boarding.  The father is not a person who spends time reading or on intellectual pursuits which, although these are of interest to the child, are unlikely to become an area of shared interest.  These matters all weigh in favour of shorter rather than longer periods of time for the child with the father.

2. The Independent Children’s Lawyer submitted in favour of interim orders.  None of the parties supported such an approach.  All are weary of litigation and it has clearly taken a heavy toll on them and the child.  Further litigation is likely to exacerbate the tensions which ebb and flow between the parties and severely undermine the ability to maintain the improved relations which have been achieved.  I fully appreciate why the parties are reluctant to continue this litigation and agree with them, it is timely and in the child’s best interest to make final orders.

3. There is considerable overlap between s 60CC(4) and (4)(a) with s 60CC(3). There are no further matters which require consideration. However, so that it is clear, I accept the mother and her parents have made major decisions about the child without consulting the father. Although he wished to be involved and, to a greater degree should have been, the relationships between the parties were difficult and the issues which required careful consideration did not, in the circumstances, lend themselves to easy communication. Unfortunately, it has really only been through the process of this hearing and the lead up to it, that the parties have been able to consider matters with the child’s best interests at the forefront of their thinking and not cast in the shadow of positions taken in litigation.

Conclusion and structure of the orders

1. I agree with the parties that the child’s best interests weigh in favour of him gradually moving into his mother’s primary care and maintaining good relationships with his maternal grandparents, as well as developing a better relationship with the father.  The evidence weighs heavily against equal or substantial and significant time in the father’s favour.  This is agreed by the father, which acknowledgment reflects well on him and shows he is, with advice, able to consider the child’s situation.  Although I did not sense the father fully appreciated the significance of Dr W’s evidence about the child’s anxiety, he is able to accept that the child will require time and support before he spends time overnight with the father.  As I said earlier, if the rate of increase in the child’s time with the father is too rapid or, overnight time for the child with the father commences too soon, this is only likely to increase the child’s anxiety and further damage the child’s relationship with the father. 

2. There was no support from the parties for continuation of the child to spend time with the father at the contact centre.  It is an hour or so drive each way and the child now finds the constraints of the contact centre conducive to boredom.  Continuing contact between the child and father there is likely to be self defeating.  The evidence established the child is not afraid of the father, but has been concerned the father might keep him.  The maternal grandparents are able to put this fear to rest and thus, there is no risk which warrants ongoing supervised time. 

3. I infer the maternal grandfather has commenced facilitating the father’s inclusion in activities with the child and the time may have been reached when the mother has also done this.  Thus, the child has seen the people who are most important to him and, in relation to his maternal grandparents in particular, whose judgment he trusts, demonstrate their support for his relationship with the father.  This is a powerful message which sets a positive scene upon which to commence unsupervised time for the child with the father.  My approach is that initially the child and father will spend time facilitated by the maternal grandfather and slowly, reduce his involvement whilst increasing the amount of time the child spends with the father.  Once the child commences overnight time with the father these arrangements may cease.

4. In the meantime, the maternal grandparents may re-establish a counselling relationship for the child with a counsellor to assist with the child’s anxiety and his ability to spend time overnight with the mother and, later on, the father.  This counselling is not for further consideration of the risk of sexual abuse as that issue has been fully explored.  It is appropriate the counsellor is provided with Dr W’s report and these reasons.  If after three months the child has not spent time overnight with his mother therapeutic intervention will commence.  After the child has regularly spent overnights with the mother, it will be appropriate for him to commence spending overnight time with the father.  Although it is difficult to be certain, a period of approximately six months of regular overnight time with the mother would lay a solid foundation upon which to start overnight time with the father.  This should be achieved within about 10-12 months and thus the orders will provide for the father to commence overnight time in 12 months.  According to Dr W by then the child should be sufficiently settled that overnight time with the father can commence. 

5. Initially, the child will have one night at a time with the father, which will build to three night blocks during school holidays.  Although the father would like to spend longer periods of time with the child during the school holidays, I am not persuaded the child would enjoy longer periods.  Consequently, longer periods are more likely to place more pressure on the child’s relationship with the father rather than assist it.

6. So as to maximise the father’s ability to ensure the child is not exposed to any drug misuse by him, the father will be restrained from using prohibited drugs while the child is in his care.

7. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding one hundred and forty four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 16 November 2010.

Associate: 

Date:  16 November 2010