Berzins and Berzins

[2007] FMCAfam 775

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BERZINS & BERZINS [2007] FMCAfam 775

FAMILY LAW – Child aged 8 years – competing applications for child to live predominantly either with mother or father – child has lived with father since November 2005 pursuant to consent order – application of rule in Rice & Asplund – weight to be given to views of child – allegations of sexual abuse – poor level of communication between parties – whether presumption of equal shared parental responsibility applies – who of the parties is better placed to provide for child’s emotional needs – weight to be given to family report – other best interests considerations.

Family Law Act 1975, ss.60B; 60CC; 60CD; 61DA;65DAA; 65DAC; 68L; 68LA.

W & W [abuse allegations: unacceptable risk] [2005] Fam CA 892
M & M (1998) FLC 91-979
N & S & the Separate Representative (1996) FLC 92-655
Rice & Asplund (1979) FLC 90-725
D & Y (1995) FLC 92-581
CDJ v VAJ (1998) FLC 92-828
King & Finneran (2001) FLC 93-079
J G & B G (1994) 18 Fam LR 255

Applicant: MR BERZINS

Respondent: MS BERZINS

File Number: ADC376 of 2007

Judgment of: Brown FM

Hearing dates: 30 and 31 August 2007
10 and 11 September 2007

Date of Last Submission: 28 September 2007

Delivered at: Adelaide

Delivered on: 9 October 2007

REPRESENTATION

Counsel for the Applicant: Mr M Pickhaver

Solicitors for the Applicant: Susan J Davies

Counsel for the Respondent: Mr G Noble

Solicitors for the Respondent: Combes & Co

Counsel for the Independent Children’s Lawyer: Ms H Leeson

Solicitors for the Independent Children’s Lawyer: Legal Services Commission of South Australia:  Mr R Winter

ORDERS

1. All previous orders be discharged.

2. The child of the relationship A “the said child” born in 1998 live with the mother.

3. The mother have sole parental responsibility for all decisions concerning the said child.

4. The said child spend time with the father:-

   (a)during school terms on each alternate weekend commencing on the second weekend of each school term from the conclusion of school on Friday until 5pm the following Sunday (or 5pm Monday in the event that Monday is a public holiday);

   (b)during the intervening week from the conclusion of school Thursday until the commencement of school Friday;

   (c)for one half for each of the April, July and October school holidays at times to be agreed between the parties and in default of agreement for the first half thereof being from the conclusion of school on the last day of term until 5pm on the middle Saturday of the said holidays;

   (d)for one half of the Christmas school holidays at times to be agreed between the parties and in default of agreement as follows:-

   (i)for the first half in 2007/2008 Christmas holidays from the conclusion of school on the last day of school until 5pm Saturday three weeks following same;

   (ii)in the 2008/2009 Christmas school holidays from 5pm on the fourth Saturday until 5pm on the last Saturday of the school holidays;

   (e)that notwithstanding the arrangements aforesaid the parties do spend time with the child as follows:

   (i)     on the child’s birthday at times to be agreed;

   (ii)    at Christmas as follows:-

   A.with the mother:-

   (a)from 12noon Christmas Eve until 3pm Christmas Day in 2007 and each alternate year thereafter;

   (b)from 3pm Christmas Day until 5pm Boxing Day 2008 and each alternate year thereafter;

   B.with the father;

   (a)from 3pm Christmas day until 5pm Boxing Day 2007 and each alternate year thereafter;

   (b)from 12noon Christmas Eve until 3pm Christmas Day in 2008 and each alternate year thereafter.

5. The appointment of the Independent Children’s Lawyer be discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC376 OF 2007

MR BERZINS

Applicant

And

MS BERZINS

Respondent

REASONS FOR JUDGMENT

Introduction

1. A is a vulnerable child of almost nine years of age. Her parents, Mr Berzins and Ms Berzins have a poor relationship with one another. They are in conflict about the best arrangements for A’s care.

2. A herself has without doubt been sexually abused. This has led her to masturbate compulsively, at times in places where she will be discovered. Her behaviour is abnormal and highly disturbing.

3. Disclosures of A’s sexual abuse arose in October of 2006. Mr Berzins and his mother, Mrs M believed A had been sexually abused by Mr O, the mother’s current partner.

4. Later, in January of 2007, A disclosed to her mother that she had been sexually abused by B, the teenage son of Ms H, a woman with whom the father was then romantically involved. This confirmed earlier suspicions that the mother had had from 2002 that B’s interest in A was unhealthy.

5. As a result of these disclosures, the Department for Families and Communities, the South Australian Government instrumentality charged with protecting children in South Australia and the South Australian police became involved with the family. 

6. Following the completion of their investigations, these organisations now have no concerns about Mr O’s ongoing involvement with A but B has been charged by police with assaulting A.  The charges against him have not been resolved, as he intends to plead not guilty to them in the Children’s Court. 

7. The parties to these proceedings are A’s parents. They met in 1995 and married in March 1997. They separated, under the one roof, in mid-2005. In October of that year, Mr Berzins moved out and became involved with Ms H. At the same time, the mother commenced her relationship with Mr O.

8. The period following the parties’ separation was difficult for all concerned. Initially A lived with her mother in the former family home at Hxxx, where A had lived for most of her life up to that stage.

9. However, in late October 2005, Mr Berzins retained A in his care, following what had originally been intended to be a weekend visit. He alleged that A told him that she had been present whilst her mother and Mr O were having sex.

10. Soon after, he began proceedings in the Family Court, seeking orders that A live with him. He enrolled her in a school near to his home the following Monday. A did not have a chance to say goodbye to her school friends at her old school.

11. The mother did not respond to the father’s application in the Family Court.  On 22 November 2005, the parties entered into consent orders, which saw A living predominantly with her father and spending alternate weekends, during term time and half of each school holiday period with her mother.

12. It is Ms Berzins’ position that she agreed to these orders only because she felt overwhelmed by the situation and intimidated by Mr Berzins. She says the father told her that if she contested the proceedings, he would make sure she did not see A easily. Ms Berzins did not have any legal advice.

13. The mother commenced these proceedings in January of 2007, when the abuse allegations about B came out. She wants A to live with her and spend time with her father on weekends and school holidays. She also wishes A to return to Gxxx Primary School, the school she was attending at the time she went into her father’s care.

14. It is the mother’s position that this is what A wants, as she has always regarded Ms Berzins’ home in Hxxx as her (A’s) home and Gxxx as her school. The mother believes that A is deeply unhappy with her current arrangements and longs to return to what she knew before October of 2005.

15. Ms Berzins also believes that A is psychologically troubled, particularly because of the sexual abuse to which she has been subjected, as manifested by her semi-public masturbation but also because of her relationship with her father and paternal grandmother, Mrs M, who from her (A’s) perception do not believe what she has said about B and the innocence of her relationship with Mr O.

16. In these circumstances, she wants to take A to see Dr T, a paediatric psychiatrist. As the orders of November 2005 vest responsibility for A’s day to day care in Mr Berzins, she says she has not been able to arrange this essential counselling for A. To date, Ms Berzins asserts that Mr Berzins’ response to A’s behaviour has been inappropriate, insensitive and slow.

17. Obviously, the mother’s application seeks to overturn a long standing arrangement for A’s care, which has been in place for nearly two years. Mr Berzins argues that it would not be in A’s best interest for this change to occur as it would be unsettling for A. He vigorously refutes any suggestion that his care of A has been anything other than loving and appropriate.

18. Because of the serious allegations of sexual abuse, which have arisen in this case, concerning a child of tender years, it has been ordered by the court that A’s interests should be represented independently of her parents. A’s independent children’s lawyer[1] is Mr Winter. He has briefed a barrister, Ms Leeson to appear on A’s behalf.

    [1]  See Family Law Act at section 68L

19. The law requires Mr Winter and Ms Leeson to formulate a position, based on the evidence available to them, which they think will be in A’s best interests.[2] In her submissions, Ms Leeson advocates that A should move to live with her mother and spend alternate weekends and one overnight period, during school terms, with her father, as well as regular periods during the school holidays.

    [2]  See Family Law Act at section 68LA

20. Ms Leeson views the parties’ parenting relationship with one another as being so poor that it cannot sustain them having equal shared parental responsibility for A. She believes such an arrangement would simply not be in A’s best interests.  Accordingly, she advocates that

    
    

    Ms Berzins should have sole responsibility for A’s care.[3]

    [3] See Family Law Act at section 61DA

21. Ms Leeson’s position is no doubt influenced by the evidence of the independent court appointed expert in this case. He is Graeme Piercy, a psychologist experienced in assessing the nature of children’s relationships with their parents and ascertaining the views of those children, in a court setting, often where there is significant conflict between the parents concerned.

22. Mr Piercy also advocates a change in arrangements for A’s care. He has reached his opinion because he believes it is what A wants and because it will be in her best interests. Mr Piercy did not form a favourable impression either of Mr Berzins himself or his level of insight or sensitivity to what is required to be a good parent.

23. During the process of writing his report, Mr Piercy interviewed A at length. She consistently and strongly said she wanted to live with her mother. Mr Piercy believes it was very brave of A to express these views, which she must have known was not what her father wanted her to say. In the lead up to the report, Mr Piercy believes A had been exposed to some significant pressure from her father to say otherwise.

24. Mr Piercy is also concerned that Mr Berzins does not have an appropriate awareness of the serious nature of the abuse A has most probably experienced from B and is dismissive of it. As a result, he has serious doubts that Mr Berzins will be able to protect A from harm in future. He categorises A as “vulnerable”.

25. In his report, Mr Piercy characterises Mr Berzins as being proprietorial towards A and not being supportive of her relationship with her mother. Mr Piercy did not discern anything in his interviews with each of the parties to cause him to disbelieve what Ms Berzins told him about having been bullied and controlled by Mr Berzins, during their relationship and afterwards.

26. Both parties complain that the other has behaved in a violent way, at times in A’s presence. One such incident occurred when A was being exchanged between the parties in August 2006. Another at the Oxxx police station in January 2007, when the police were investigating the mother’s notification regarding B.

27. These proceedings are directed towards resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their child should live, it is the best interests of the child concerned which are paramount.[4]

    [4]  See Family Law Act at section 60CA

28. The court must balance the benefit of the child concerned having a meaningful relationship with both his or her parents with the need to protect that child from physical or psychological harm. The court must decide which of the parties’ competing proposals, including those of the independent children’s lawyer, is most likely to advance the best interests of the child concerned.

The Issues

1. Having provided this introduction, it is useful for me to set out the issues which I must determine, before turning to the evidence and applicable legal principles in more detail.

   ·Is it in A’s best interests to allow the mother to revisit the orders of 22 November 2005; [the rule in Rice & Asplund].

   ·Should the parties have equal shared parental responsibility for A [Family Law Act section 61DA]. This will involve an investigation of the nature of their parental relationship.

   ·What happened between B and A in 2002, when B was aged around 10 and A was a toddler. Did the mother respond appropriately to the situation.

   ·What are A’s views about future arrangements for her care. What is shaping those views. Is A old enough and insightful enough to be able to express a clear wish about what she wants [Family Law Act section 60CC(3)(a)].

   ·What happened at the end of October 2005, when A came into Mr Berzins’ care. What does it say about the respective insights of the parties regarding the responsibilities of being a parent and their ability to support a relationship between A and the other parent concerned [Family Law Act section 60CC(3)(c) & (i)].

   ·What happened at the handover in August 2006. In particular, was Mr Berzins violent towards Ms Berzins. What are the implications of this incident for A’s emotional well being. Does A need to be protected from being exposed to family violence [Family Law Act section 60CC(2)(b)].

   ·Does Mr O constitute an unacceptable risk to A.

   ·How have the parties responded to A’s alleged disclosure in October 2006 and how it was resolved by the authorities.

   ·Does B constitute an unacceptable risk to A. How have the parties responded to A’s alleged notification that B has sexually abused her.

   ·Why has A been compulsively masturbating. Who of the parties has the greater level of insight into this behaviour and the best strategies to cope with it, including consulting appropriate professional help for A.

   ·Who of the parties has the greater capacity to provide for A’s emotional needs [Family Law Act section 60CC(3)(f)].

   ·What will be the consequence for A, if there is a significant change in arrangements for her care, particularly if she changes schools and where she predominantly lives [Family Law Act section 60CC(3)(d)].

   ·What are the consequences for A of her parents’ poor relationship with one another, particularly their difficulty in communicating with one another. Is this relationship sufficient cohesive to support either A spending equal periods of time with both her parents or substantial and significant time with them each [Family Law Act sections 61DA & 65DAA].

   ·Is the father the controlling and domineering personality, which the mother portrays. On the other hand, is the mother the lax and indulgent parent, whom the father portrays.

   ·Finally and most importantly, what is the best outcome for A.

The Evidence

1. The parties each gave evidence[5] and each was extensively cross-examined. Ms Leeson was very active in the proceedings. In addition, Mr O gave evidence[6], as did Mrs M, A’s paternal grandmother.[7] 

   [5]  The mother relies on her affidavit filed on 30 July 2007.  The father on his affidavit filed on 24 July 2007.

   [6]  The mother relied on Mr O’s affidavit filed 30 July 2007.

   [7]  The father relied on Mrs M’ affidavit filed 31 July 2007.

2. The other witness, who gave evidence in these proceedings, was Mr Piercy. Again, he was extensively cross-examined by counsel for each of the parties. Mr Piercy is a clinical psychologist. He has been a family consultant at the Family Court in Adelaide since 1994. I accept his qualifications and expertise to provide the family report in this case.

3. Mr Piercy had a fundamental advantage over me in this case. He was able to see and hear A. He was able to see the parties interacting with A and form impressions of the nature of her relationship with them in a first-hand setting. As such, Mr Piercy is likely to be the most reliable conduit of A’s views [Family Law Act s.60CD(2)].

4. I found Mr Piercy’s report to be thorough and well considered. He was not shaken in his opinion in the face of cross-examination. Overall, I accept his evidence and recommendations.

5. For obvious reasons, given their subject matter, the proceedings in this case were difficult and emotionally fraught for all concerned, myself included. At the outset, I wish to point out that I have no doubt that each of the parties concerned loves A very much indeed and wants the best for her now and for the rest of her life. In this sense, both parents are good parents.

6. Ordinarily, a court such as this one, should refrain from making adverse comments about a parent, unless it is specifically necessary to do so. It does not help children if the relationships between their parents are inflamed by hurtful but gratuitous findings of fact.

7. It is becoming increasingly recognised that it is difficult for courts to make findings of fact about myriad issues, which have arisen over many years in a family, through the imperfect tool of assessing evidence provided in the artificial (and to many, intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.

8. Unfortunately, but for obvious reasons, the parties in adversarial proceedings, such as these, tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own. In addition, the extreme emotion created by such proceedings, which involve the person the parties to them hold most dear – their child – blur perceptions and recollections of past events.

9. For all these reasons, the court must be cautious about making findings of fact. However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and witnesses involved, including their likely level of truthfulness, so this adjudication can occur.

10. I did not find Mr Berzins to be an impressive witness. He was out of his depth in dealing with the complex issues which arise in this case. My impression was that he constructed much of his evidence, so that it would fit it in with what he thought I wanted to hear, following counsel’s questions. The difficulty for him that he was not always sure what that was. Accordingly, his evidence was evasive and marked by bluster. I did not believe much of it.

11. Ms Berzins did not seem to me to be a sophisticated person. Nor is she an assertive personality. She is however honest and sensitive. Her evidence was considered, particularly where A was concerned. She did not seem to me to be a person who jumped quickly to conclusions. Rather she seemed more inclined to think things through slowly. This is particularly so in regards to the difficult issues of sexual abuse in this case, which moved her to tears, when she was required to recollect them.

12. Overall, I think her likely to be more able than Mr Berzins to put A’s emotional needs before her own. I find it highly likely that Mr Berzins has at times bullied her and does not hold her in high regard, either as a person or a parent.

1. Given his poor view of Ms Berzins, it is likely that Mr Berzins will, wherever possible, form an adverse view about her. The parties’ poor relationship with one another provides fertile ground for suspicions to grow.

2. In such a context, innocent comments, particularly by a child such as A can be easily misconstrued. Mr Berzins is more likely than Ms Berzins to have this propensity for misconstrual. Unlike her, he is impulsive and prone to jump to conclusions.

3. Regrettably the parties have no facility to work through issues together and resolve them satisfactorily.  In this case many issues have been left unresolved to fester. This is particularly so in regard to the issues of sexual abuse, which may never now be resolved to the complete satisfaction of the parties.

4. In my estimation, Ms Berzins is likely to be the more reliable and insightful witness of the two, particularly where A and her emotional needs are concerned. She is cautious and unassuming. Mr Berzins is not.

5. Mr O seemed to me to be a pleasant and honest witness. He vehemently denied ever having behaved inappropriately towards A. He did not do so in a strident or affected manner.

6. In saying this, I am well aware of the caution the Full Court of the Family Court has stipulated that courts such as this one need to take in assessing the truth or otherwise of what a person says in the witness box, particularly regarding allegations of abuse. The truth does not always come out. Witnesses can be quite credible in their denials.[8]

   [8]  See W & W [abuse allegations: unacceptable risk] [2005] Fam CA 892 at para 115

7. Mrs M is a devoted and loving grandmother. She is close to her son and supports his position in these proceedings. She is puzzled and disturbed by what has happened since October last year.

8. At times Mr Berzins has allowed her to take responsibility for dealing with the abuse issue, allowing her to decide whether A should be taken to doctors and the authorities informed. However, Mrs M, ostensibly at least, defers to the authority of Mr Berzins as A’s father and leaves him to be responsible for making decisions about A.

9. This has led to miscommunication between the two. I am also concerned that Mrs M lacks sufficient emotional distance from the issues in this case to provide balanced evidence in it. She did not seem to me to be particularly well disposed towards the mother or to Mr O, whom it seems she has never met.

a)    Chronology

1. Mr Berzins was born in Adelaide in 1962. He is a tradesman although he is not currently working, having been put into bankruptcy earlier this year. He blames Ms Berzins for his bankruptcy as he alleges she failed to hand on court documents to him.

2. The bankruptcy is irrelevant to these proceedings other than that I regard Mr Berzins’ blame of the mother for it to be fatuous. He must be held responsible for safe guarding his own financial and business affairs. In my view, the relevance of his recriminations directed towards the mother only serves to demonstrate a propensity he has for blaming others for his own failings.

3. Mr Berzins also has a number of minor convictions. Again, I do not think that much turns on these matters other than, in a general sense, the circumstances surrounding them demonstrate that Mr Berzins has a volatile temperament, marked by a tendency to react extremely to difficult circumstances and think about the consequences of his behaviour later.

4. Ms Berzins was born in 1962. She has strong familial connections in Adelaide, where she grew up. She has previously been married and has three children from her earlier relationship. These children are S, now 25 years of age; G, now 21 years of age; and R, now 17 years of age.

5. The mother has not been part of the paid workforce for many years. The father is critical of her, for what he perceives to be her lack of application. The father is also critical of the mother for how S, G and R have turned out. It seems that none of these children progressed particularly far at school. Ms Berzins herself left school at the end of year 11.

6. Mr Berzins is proud of his trade qualifications and the fact that he worked during the marriage. He is also proud of his mother, who holds a responsible position as an accountant. It is Mr Berzins’ view that his household is more likely to be conducive to the support of academic excellence for A and ensuring she is able to follow a career when she is grown.

7. I outline these matters because, no doubt as a result of the parties’ different backgrounds and personalities, their respective households are likely to be imbued with different philosophies and outlooks on life. Mr Berzins can see little good in Ms Berzins’ household and parenting skills, particularly in terms of how S and Gemma have progressed.

8. Mr Berzins is also Latvian by birth. His culture is very important to him and he wishes A to be part of it. A currently attends Latvian school on the weekends. . Mr Berzins does not believe that Ms Berzins would support these activities for A. He characterises her as lazy and lacking in motivation.

9. The parties met in October 1995. They married in 1997. In June of 2000, they were able to move into a housing trust house in Hxxx. The mother continues to live in the property.

10. In his affidavit material, Mr Berzins is highly critical of the mother’s housekeeping skills. He asserts that she rarely cooked, being reliant on him to prepare meals or obtain takeaway food. The father’s view of the mother as a parent and homemaker is essentially negative.

11. The parties both describe their relationship with one another as unhappy. The mother complains that the father was at times violent towards her and he had a volatile temper. She also complains that he was not good with money and at one stage got into serious trouble with Centrelink.  Mr Berzins’ criminal record indicates a suspended jail term for social security fraud in October 2001.[9]

    [9]  See exhibit G

b)    The incident of 2002 between A and B and how the mother dealt with it

1. Ms H was a close friend of the mother’s. She and her former husband Mr H had a farm, which the parties would visit from time to time. On one occasion, some time in 2002, the mother discovered that B had taken A to his bedroom and locked the door. At the time B was aged around nine or ten and A must have been a toddler.

2. Ms Berzins demanded that B open the door. He did so and she discovered that A’s tracksuit pants were on inside out, which is not how she had been dressed earlier.  B apparently confessed that he had been driving his toy cars over A and had taken her pants off because it was part of the game. 

3. Ms Berzins felt uncomfortable about this explanation, particularly in circumstances where the bedroom door had been locked.  She raised the matter with Mr and Ms H. She told B that she did not approve of his behaviour.

4. Ms Berzins and Mr and Ms H decided to keep an eye on B from then on and ensure that he was never left alone with A. Ms Berzins elected not to tell Mr Berzins about the incident. The reason for this is that she feared that Mr Berzins would react in a way out of proportion to the matter.  Given my findings about Mr Berzins’ temperament, I do not think that this can be described as an unreasonable expectation.

5. Nor do I think that Ms Berzins can be criticised for how she responded to the matter. B was very young. It is conceivable that there could have been an innocent explanation for his behaviour. In my view, it would have been a gross over reaction to inform the police. However, the incident disturbed Ms Berzins and the memory of it stayed with her, coming to the fore of her mind, when Mr Berzins commenced a relationship with Ms H, after the parties had separated.

6. There is much dispute between the parties as to if and when

   
   

   Ms Berzins told Mr Berzins about her suspicions and concerns regarding B.  I am satisfied that she did so at some time in 2006. Given the time which had elapsed since the incident and her temperament, she probably did not do so in an emphatic manner.

7. Certainly, Mr Berzins has no clear recollection of it. At any event, I suspect that he would not have given high regard to anything

   
   

   Ms Berzins said, particularly if it was critical of his then girlfriend’s son.  Mr Berzins is the sort of person who always knows best.

8. More likely than not, the connection and her concern about what had happened in 2002 became clearer in the mother’s mind when A disclosed to her that B had been touching her inappropriately. This disclosure was made on 20 January 2007.

9. By this time, the father had already raised his concerns that Mr O had touched A inappropriately. This allegation had arisen in October of 2006 and been dismissed as being baseless by the child protection authorities and the police.

10. In the circumstances of the parties, it is not surprising that firstly

    
    

    Mr Berzins would think the mother was raising the issue about B in retaliation and out of malice for him and secondly that Ms Berzins would consider that this would be his natural and inevitable response. Both parties had a vested interest in respect of whether the issue of B had or had not been raised earlier.

11. The effect of Ms Berzins’ evidence is that she has always “tip toed” around Mr Berzins and been frightened of how he might react to information about A. By this stage, the parties had little, if any facility to thrash out the issues regarding A and her behaviour and sort out the “wheat from the chaff”, so far as what she had supposedly said to each of them and put it into proper context. This includes the earlier incident of 2002 regarding B.

12. Much water had passed under the bridge since the parties had separated.  Their positions were becoming increasingly polarised and A’s behaviour was becoming increasingly extreme and concerning. As I have already observed, this was fertile ground for suspicions to take root. It is regrettable that these proceedings, in September of 2007, provide the first real forum for light to be shed on these matters. I will return to the allegations of sexual abuse in due course.

c)     The circumstances surrounding A coming into her father’s care in October/November of 2005

1. Mr Berzins moved out of the parties’ former family home at Hxxx leaving A behind.  It is common ground that for about five weeks thereafter A remained in her mother’s care and continued to go to Gxxx Primary School.  All this changed on Sunday 30 October 2005, when Mr Berzins retained A following an informal contact weekend.  There were no court orders at this stage.

2. During this weekend, Mr Berzins asserts that A told him that she had observed the mother and Mr O having sex together.  Initially, in cross-examination, he conceded that it may have been the case that this was matter of inadvertence on the mother’s part.  The implication being she should have given the benefit of the doubt by him.

3. Later, he indicated his extreme disapproval of the mother and asserted his belief that she may have allowed A to see her and Mr O deliberately or at least negligently.  I did not find him particularly compelling in his explanation of his motivations.

4. What is clear however, is that he did not discuss the issue with

   
   

   Ms Berzins at all but acted unilaterally and, in my view, opportunistically.  He wanted to take A away from the mother for himself.  On Monday 31 October 2005 he concedes that he told A over the breakfast table that she would not be returning home to her mother or her school.  That morning, he enrolled her at the Mxxx Primary School.

5. This issue reverberates with A to this day.  She complained to Mr Piercy about the distress she felt at how she came into her father’s care and her regret that she was never able to say goodbye to her friends at Gxxx.[10]  Mr Berzins has never made any arrangements for her to see her friends in the period since.

   [10]  See Family Report at paragraph 68.

6. It is also telling that Mr Berzins commenced his proceedings, in the Family Court, on 27 October 2005.  His retention of A on the following weekend has all the elements of a pre-emptive strike.  In my view, it cannot be described as child focussed or sympathetic to either the feelings of Ms Berzins or A.  It causes me to agree with Mr Piercy’s view that Mr Berzins has a tendency to consider that A is a piece of his property.[11]

   [11]  Ibid at paragraph 91.

7. During the course of the evidence, Mr Berzins had cause to reveal that, in response to a complaint from him regarding her behaviour at his home, A had told him that “if you can’t manage my behaviour, you can send me home” or words to that effect.  I do not doubt that A has said such a thing.

8. What struck me as interesting is that, it was a given thing, so far as both A and Ms Berzins were concerned that A regarded the mother’s house as “home”.  Mr Berzins said that he too had “slipped up many times” and “mistakenly” referred to Ms Berzins’ house as “home” to A. 

9. I do not think that it is placing too much emphasis on this conversation to assert that it is emblematic of the fact that A regards her mother’s house as being her proper home and to a certain extent Mr Berzins concurs that this is her view.  In all the circumstances of this case, I do not think that these can be regarded as inconsequential matters.  From A’s point of view, what happened in October of 2005 and afterwards was badly handled. 

10. The mother had no stomach for a fight with Mr Berzins.  At the time, she was not a strong woman.  She had been diagnosed with a condition known as fibromyalgia, which caused her tiredness and loss of energy.  In his affidavit material, the father has opined that the mother suffers from hypochondria.  Again this is evidence of his disdain for her.

11. I have little doubt that Mr Berzins told Ms Berzins that he would make it as difficult as possible for her to see A.  Mr Berzins asserts, in his affidavit material that in effect Ms Berzins negotiated the care of A to him in exchange for a more satisfactory settlement of property.  I do not accept that this is the case.  The purpose of the allegation is to suggest the mother is devoid of maternal feelings.  Something I do not accept.  The sum concerned is a paltry one of $5,000.00.  Again the suggestion is more damaging to the father than the mother.

12. Rather, against her better judgment and in the face of considerable pressure from Mr Berzins, Ms Berzins elected to agree to the father’s proposals in the hope that in time things would level out and she would be able to maintain her relationship with A, without too much trauma to all concerned.  She had no lawyer to advise her otherwise.

13. With the benefit of hindsight, she can perhaps be criticised for this apparent weakness.  However, having observed Mr Berzins closely, he is not a person to be easily trifled with.  Certainly not by a diffident and unassuming person, such as Ms Berzins. 

d)    The incident at handover in August of 2006

1. A began exhibiting disturbing behaviour throughout 2006.  From the mother’s perspective, she began to masturbate whilst lying on her bed or watching television.  It is unclear precisely when the behaviour began.  Most likely it was around the middle of 2006, certainly well before the father and Mrs M raised concerns about Mr O. 

2. Ms Berzins was worried about what A was doing and asked her why.  My impression is that Ms Berzins was not trying to probe A but rather get to the bottom of the behaviour without distressing A.  Ms Berzins certainly took the behaviour seriously.  I accept her evidence that she felt unable to discuss the issue with Mr Berzins. 

3. A said the behaviour felt “nice” and was a “fun game”.  Later, she referred to it as a “secret game”.  Ms Berzins noticed she would masturbate more when stressed or upset.  What was highly disturbing to her and Mr O was that the behaviour did not occur in private. 

   
   

   Ms Berzins encouraged her to stop masturbating, particularly in public and warned her of the danger of vaginal infection. 

4. Apart from this behaviour, A was difficult to deal with at handover.  At times hiding in her mother’s home before she was due to be returned to her father.  She also displayed more intense reluctance to return at the actual handover spot, which had been moved to the police station at Hxxx.  One incident stands out, which occurred in August 2006. 

5. Ms Berzins gave graphic evidence of the incident, which I accept. 

   
   

   Mr Berzins does not dispute that the situation was difficult, so far as A was concerned.  However, he down plays his reaction to the incident and denies that he punched Ms Berzins.  In this aspect, I prefer

   
   

   Ms Berzins’ evidence. 

6. The precipitating factor for the incident was that A refused to get into her father’s car.  Ms Berzins recounts that A launched herself at her mother and locked her arms around her mother’s neck and her legs around her waist.  A was highly distressed. 

7. Ms Berzins recounts that Mr Berzins lost his temper and attempted to “reef” A off her.  A was screaming at her father that she hated him.  During the altercation, Ms Berzins deposes that Mr Berzins “swung a round house” at her, which struck her in the head and knocked her off her feet.  A was forcibly placed in the father’s car. 

8. The incident seems to have been highly distressing to all concerned, particularly A.  It seems that she escaped from her father’s car on at least two occasions.  She clearly saw her father strike her mother and was forcibly removed from her by Mr Berzins.  Mr Berzins did not handle the incident well.

9. With the benefit of hindsight, Ms Berzins believes that A’s behaviour may have been motivated by her fear that she would be re-exposed to B.  It is her understanding that A was spending weekends with B, whilst she was in her father’s care and had been sharing a bedroom with him.[12]  However, this is conjecture on her part. 

   [12]  See mother’s affidavit of evidence at paragraph 67

10. In terms of justifying his behaviour Mr Berzins indicated that it was his responsibility to ensure that the orders of November 2005 were followed and he had to be “strong” about them.  If he had not done what he did, he would have been displaying “weakness” about the orders.  Certainly, he seems to have displayed little emotional empathy for A. 

e)     The disclosure of sexual abuse in October of 2006

1. What is striking about Mr Berzins and Mrs M’s respective affidavits is that there is no mention in them of A displaying any sexualised behaviour, whilst in their care.  However, both conceded in cross-examination that A had been masturbating whilst with them.  This behaviour was part of the background to the complaints raised by them, in October 2006 that A had been sexually abused by Mr O. 

2. No doubt both are embarrassed and perplexed by this behaviour on A’s part.  However, this lack of candour significantly discounts the portrayal that each make of A being a happy and contented child, whilst with her father.[13]

   [13]  See Mrs M’s affidavit at paragraph 10

3. Although, I am satisfied that A has a significant relationship with both her father and her paternal grandmother, I am concerned that both have painted an unduly “rosy” picture of A, in their affidavits, for the sake of success in these proceedings. 

4. In his affidavit, Mr Berzins devotes two sentences to the allegation of sexual abuse made against Mr O.  He annexes to his affidavit a letter his solicitor wrote to Ms Berzins’ solicitor on 26 October 2006.[14] 

   [14]  See father’s affidavit of evidence at paragraph 47

5. The letter indicates that A has complained to both her father and grandmother that Mr O has “rubbed Vaseline on her private parts” and assisted her in changing into her pyjamas and undressing for a bath.  The letter concludes with a request that Ms Berzins not leave A in

   
   

   Mr O’s care and a statement that Mr Berzins is not in a position to ascertain the truth or otherwise of these particular allegations. 

6. The letter is presented as being indicative of Mr Berzins having behaved in a reasonable and restrained manner to the allegations.  Ostensibly, the letter may indicate this.  However, in my view, the reality of the situation is different.  I have no doubt that Mr Berzins and Mrs M continue to harbour considerable suspicions that Mr O has indeed acted inappropriately towards A.  This state of belief has coloured the entire proceedings.

1. However, notwithstanding this state of visceral belief regarding Mr O, in a formal sense, Mr Berzins does not seek that the court make a finding that Mr O poses an unacceptable risk of harm to A.  With a metaphorical shrug of the shoulders, he concedes there is nothing he can do about it, given the result of the official inquiry into the matter.

2. Given the absence of any coherent account of the circumstances surrounding A’s disclosure to them regarding Mr O in their affidavits, both Mr Berzins and Mrs M were compelled to give their respective accounts orally in the witness box.  There were conflicts between their respective accounts, each of which were somewhat confused. 

3. Both Mr Berzins and Mrs M recount that they discovered A masturbating in her bedroom following a contact weekend with her mother.  Mr Berzins deposed that he thought it was more appropriate for his mother to deal with the issue, given A’s sex. 

4. Mrs M’ account is different.  She says she walked in on A masturbating and immediately asked her what she was doing.  A indicated she was itchy and asked her grandmother for some Vaseline to put on.

5. When Mrs M was applying the Vaseline, A allegedly disclosed that

   
   

   Mr O had done the same thing, which A had not liked.  A also requested her grandmother to tell her mother to tell Mr O to desist from this behaviour.

6. The following evening, Mr Berzins deposes that he had a further conversation with A, in which she disclosed that Mr O had taken photographs of her and had dressed and undressed her, which made her feel uncomfortable.  Mr Berzins did not report these matters to the relevant authorities, but relied on his mother to do so. 

7. Mrs M arranged to take A to her own doctor for a physical examination.  This apparently did not reveal anything untoward.  It seems that the doctor concerned did not make a formal notification of abuse. 

8. Mrs M also rang the child abuse line.  She cannot remember to whom she spoke.  It also seems to be the case that this telephone call did not result in any formal notification.  Later that week, Mrs M spoke about the matter to the teachers at A’s school.  It seems that they raised the issue with the police, who were called to the school. 

9. Obviously, in the days concerned, Mr Berzins and Mrs M discussed closely with one another what had occurred and what should be done about it.  In such circumstances, it is hardly surprising that it is now unclear precisely what A said to whom.  At any event, Mr Berzins did not see it as appropriate to raise the issue directly with Ms Berzins.  He left it to his mother. 

10. Mrs M originally left a message on Ms Berzins’ answering machine.  At some later stage, the two had a conversation about what A had apparently said.  Mrs M indicates that the mother told her “mum, you should know it was not Mr O.  It was B.”

11. What however is clear, is that Ms Berzins did not have an opportunity to speak with A prior to the police investigating the notification made to them by the school authorities.  Ms Berzins was told by the police that she could not collect A for a contact weekend.  Accordingly it cannot be said that the mother directly influenced anything A said to the police.

12. No records have been provided to me in respect of the police investigation.  In particular, I do not know the precise form of the notification, which the police and child protection authorities investigated.  I do not know what form any interview between police and A or whether it was recorded in some way. 

13. What I do have is a letter dated 29 January 2007, from the Child Protection Directorate of Families SA, which came into existence as a result of the mother’s application filed in the Family Court on 24 January 2007, which was placed in the Magellan list.[15]

    [15]  See exhibit F

14. The letter discloses that the allegations raised were that Mr O had applied a “cream” to a rash A had in her genital area and had photographed her whilst in the bath. 

15. A member of the South Australian Police Child and Family Investigation Unit spoke with A at her school.  This officer formed the view that the disclosures made by A were not of a sexually abusive nature and warranted no further investigation.  Neither Ms Berzins nor Mr O were interviewed.

16. A apparently disclosed that Mr O had taken a picture of her in the bath, whilst she was covered in bubbles for the family photo album.  She apparently also reported that Mr O had assisted her with a zip on three occasions, when the zip had stuck and had applied a “GP prescribed cream” to the top part of her vagina, at Ms Berzins’ request.  The cream being for a rash, which the child had.

17. Both Ms Berzins and Mr O were cross-examined about the gravamen of these various incidents.  They each acknowledged that A had requested to be photographed, whilst in a bubble bath.  The requested photograph was going to be taken by Ms Berzins’ son R, however the battery of the camera was flat.  This account seems entirely plausible and innocent to me. 

18. Again, both Mr O and Ms Berzins gave evidence that A had a pair of boots, which had zippers on them.  Both deposed that Mr O had assisted A with the zippers on her boots from time to time.  Again, there seems nothing untoward in this.

19. The disclosure concerning the “cream” is the closest to Mrs M’s account of Vaseline.  Ms Berzins deposed that A has suffered some genital itchiness from time to time which she (Ms Berzins) has treated with non-prescription cold cream.  Both she and Mr O denied that

    
    

    Mr O had ever applied any substance, whether prescription or non-prescription, to A’s genital area. 

20. Ms Berzins deposed that she has never permitted Mr O to bathe or dress A.  I accept this is so.  I cannot rule out the possibility that on one occasion, or perhaps more, Mr O applied some sort of ointment to A’s vagina, at her request and he is now too embarrassed or overwhelmed to disclose the matter now.  However, what is important is that the police officer concerned was satisfied that A was not disturbed by any of these incidents, none of which made her feel uncomfortable. 

21. As I have already indicated, I suspect that neither Mr Berzins nor

    
    

    Mrs M accept the aspect of the police investigation regarding the application of the cream by Mr O.  Mrs M concedes she has had a discussion with A about the matter.  The discussion took place sometime in March 2007.  Mrs M deposed that A had spontaneously raised with her what had happened with B.  A told her that B had touched her between the legs. 

22. In response to this disclosure, Mrs M asked if this was the same as what Mr O (Mr O) had done to her.  A denied that it was saying that Mr O had never touched her between the legs and she had had a “black out”. 

23. Mrs M acknowledges that she has never met Mr O.  She also conceded that she currently had no view regarding whether B had behaved inappropriately towards A as she was awaiting the outcome of the police charges against him. 

24. Mrs M also conceded that she did not believe A’s purported retraction of her complaint against Mr O, as A “makes up every second word”.  Mrs M also deposed that she has spoken to A on three or four occasions about Mr O with a view to testing whether her retraction of any compliant against him is valid. 

25. This is important.  As I have indicated, my impression is that neither Mr Berzins nor Mrs M accept Mr O has not acted inappropriately towards A.  As a result, both have questioned A about the matter, placing her under a significant level of emotional distress.  A confirmed her distress to Mr Piercy and suggested the two were trying to influence her.[16]

    [16]  See Family Report at paragraph 73

26. If Mr Berzins and his mother think, at a deep emotional level that it is Mr O, who is the danger to A, they are unlikely to have any significant concerns about B.  This leads them to discount the seriousness of the allegations against B.  Again a matter which was of concern to Mr Piercy.[17]

    [17]  Ibid at paragraph 82

27. On the basis of the evidence before me, I am not persuaded that any future interaction between Mr O and A would constitute an unacceptable risk to A.[18]

    [18]  See M & M (1998) FLC 91-979

28. What factors shaped the notification, which came to the police in October 2006, will never be fully known.  At her age then A was not able perhaps to understand fully the magnitude of the matters, which the police wanted to discuss with her.  Given the time that has elapsed since, it is likely to be fruitless to try and revisit them with A now. 

29. What matters is that the allegations were investigated, when they arose and were found to be baseless.  I need to be aware that not all allegations of sexual abuse are true.  False allegations arise, often in good faith, as a result of the misperception of information, particularly misinformation conveyed by young children.  Ambiguous events often have an innocent explanation, which is lost when there is mistrust and hostility between the actors concerned.[19] 

    [19]  See N & S & the Separate Representative (1996) FLC 92-655 at 82,711 per Fogarty J

f)     The disclosure of January 2007 regarding B

1. Ms Berzins was becoming increasingly anxious about A’s behaviour in the period before the police investigation and afterwards.  A’s masturbation continued.  It seems that she was also masturbating at her father’s household.  This behaviour has continued throughout 2007, although it seems to be reducing now.  On at least one occasion, A has been caught by a teacher masturbating at school. 

2. This behaviour is disturbing and abnormal in a child of A’s age.  It is also almost certainly indicative of some significant disturbance in A’s life.  Mr Piercy’s professional view is such sexualised behaviour is a common reaction in children who have been sexually abused.[20]  This seems to be axiomatic. 

   [20]  See Family Report at paragraph 47

3. Ms Berzins tried to get to the bottom of the behaviour but A would “clam up”.  In my estimation, gently and tactfully Ms Berzins asked A if anyone was doing anything to her about which she wanted to speak.  Ms Berzins was at pains not to embarrass or humiliate A.

4. A said it was a secret game.  At another stage she said she could not tell her mother because it would make her upset.  It also seems to be the case that she was frightened that her father would be cross.  Patiently, but now doubt at her wits end, Ms Berzins waited for A to say something more concrete.  Perhaps there was something more

   
   

   Ms Berzins could have done but in all the circumstances, I do not know what it was.  In my view, she acted sensitively and appropriately. 

5. The disclosure came in late January 2007.  A told her mother that someone had hurt and scared her, who had the initial “B”.  A would not go any further and averted her eyes.  She was frightened her mother would be angry with her. 

6. Later that day, 20 January 2007, whilst the mother was giving A a bath, Ms Berzins noticed that A was simulating sexual intercourse between two of her dolls.  When she asked A what the dolls were doing A replied they were “having sex”.  She further disclosed that it was B who had taught her the “rubby game”. 

7. In her affidavit, filed in these proceedings on 25 January 2007,

   
   

   Ms Berzins deposes that A told her that B had poked his “private parts at her private parts”; had pushed his penis at her “bum hole”; “sucked her boobies and licked her privates”; and asked her to suck his penis.  Obviously these were matters of the upmost seriousness and demanded an immediate response.

8. A notice of child abuse was filed in the Family Court on the mother’s behalf in respect of these allegations on 25 January 2007.  The police apparently received a notification which included the oral, anal and vaginal penetration of A, around 21 January 2007.[21]  This was the day after A made the disclosures to Ms Berzins.

   [21]  See exhibit F

9. These disclosures were made, whilst A was visiting her mother on a contact weekend.  Ms Berzins determined not to return A to her father’s care.  She also decided that she would move A to a friend’s home, as she anticipated a confrontation with Mr Berzins. 

10. Ms Berzins did however telephone Mr Berzins and inform him of what had happened and explained to him why she would not be returning A to him.  Mr Berzins apparently indicated that he would allow

    
    

    Ms Berzins “24 hours grace” before he required A to be returned to him. 

11. The tenor of Ms Berzins’ evidence is that the telephone conversation between her and Mr Berzins was difficult.  This is hardly surprising.  Mr Berzins apparently suggested that Ms Berzins had been “brain washing A”.

12. He was apparently generally dismissive of Ms Berzins’ concerns regarding A’s masturbation.  She deposed that he told her:  “If I see it, I believe it.”  By this stage, he acknowledged in his evidence in court, he had in fact seen A masturbating.  There was no possibility of the parties adopting a common response to the issue.  The stage was set for further confrontation.

13. After this conversation, Ms Berzins consulted a solicitor and formally made a notification to Families SA regarding what A had told her.  In all the circumstances, I not think that she can be criticised for removing A from her home.  I accept that she was fearful that Mr Berzins would attend at her home and quite possibly forcibly remove A from her.  She wished to avoid this occurring because of the potential harm it may occasion A. 

14. Both parties were anxious to get the proceedings before the Family Court, as soon as possible.  Mr Berzins filed his application on 24 January 2007, seeking a recovery order in respect of A.  Ms Berzins commenced her proceedings on 25 January 2007.  She sought an order that A live with her and the earlier orders of November 2005 be suspended.  The parties’ respective applications were listed before Burr J in the Magellan list on 31 January 2007. 

15. On 24 January 2007, Mr Berzins informed a Families SA worker that he would not allow A to come into contact with B.  By this time clearly, he had been formally informed of the serious nature of the mother’s allegations against B. 

16. These allegations were investigated by police at the Hxxx police station.  On 29 January 2007, A and her mother attended at the police station.  So did Mr Berzins.  Regrettably, the unpleasant confrontation between the parties, which the mother had feared, came to pass. 

17. Mr Berzins attended at the police station with a copy of the orders made in November 2005.  Ms Berzins deposes that he was angry and upset, stabbing with his finger at the orders.  He demanded that A be returned to him.  The mother was upset.  She acknowledges that she slapped Mr Berzins. This is not to her credit but I can understand why she behaved in the way she did. 

18. The police took Mr Berzins aside and tried to persuade him to agree to A remaining with the mother in the short term.  He would not agree.  The police, quite properly, were disinclined to disregard the court order in Mr Berzins’ favour.

19. The officer in charge of the investigation took Ms Berzins into an interview room, ostensibly for the purpose of talking with her.  A was in another part of the police station.  Ms Berzins soon realised that it was a pretext to allow Mr Berzins to leave the police station with A.  The officer concerned apologised to her and said there was nothing he could do.  Ms Berzins wept at the memory of it. 

20. On 31 January 2007, Burr J ordered that A be independently represented in these proceedings.  An injunction was made restraining Mr Berzins from permitting A to come into contact with B.  The proceedings were adjourned until 13 March 2007. 

21. On 13 March 2007, Burr J transferred the proceedings to this court.  His Honour had before him the letter from the child protection authorities.[22]  His Honour was told that B was “likely to be charged with various sexual offences by the South Australian Police Department.”  It was His Honour’s view that this “satisfactorily resolves the issues and concerns that prompted the matter being introduced within the Magellan project.” [23]

    [22]  See exhibit F

    [23]  See notation to order of Burr J made 13 March 2007

22. One of the difficulties in this case is that none of the parties is able to provide me with details of what precise charges have been laid against B.  In addition, I have not been provided with any record of interview between police and B.  Further, and most importantly, I have not been provided with a copy of any interviews between police and A.  Accordingly, I do not know what she has told to an independent and presumably experienced investigator.

23. Obviously there must be some evidence, on which police have relied upon to bring charges against B, but I have not been provided with it.  I am however told that he intends to contest the charges against him.  It seems that he challenges the record of interview in which he took part.  I do not know any other aspects of his defence. 

24. The father’s evidence is that there is no medical evidence to indicate that A has been physically raped.  I accept that this is so.  However, it does not necessarily rule out the possibility that A has been the victim of some serious level of sexual interference, which cannot be forensically detected.

25. In this regard, the father and Mrs M’s complete lack of reference, in their affidavit material, to A’s habitual masturbation is concerning.  Both conceded in their oral evidence, that they had observed A masturbating.  Both were obviously concerned and disturbed by this behaviour in a pre-pubescent child. 

26. This is also a case involving allegations that A has been sexually abused.  Both parties have made such allegations.  Embarrassed reserve cannot explain the lack of reference in the father’s case to A’s masturbation.  It is a central issue in the case. 

27. I am concerned that both Mr Berzins and Mrs M wish to sweep the issue under the carpet, in their mutual attempt to paint A as a happy and well adjusted child.  I am fearful that they are either deluding themselves or are being disingenuous. 

28. The tenor of Mr Berzins’ evidence is that the allegations raised by the mother, which have resulted in charges against B, are either a hysterical overreaction on her part or at least a partial fabrication.  He points to the fact that “A has not been breached or torn” in support of his view.  He dismisses the allegations of sexual intercourse, anal intercourse, fellatio and cunnilingus involving A.  At worst she has been touched or as he described it to Mr Piercy, it is a case of “playing doctors and nurses”.

29. With some reluctance, in my view, in cross examination he conceded that “I believe B has done something” to A.  He quickly qualified this with the further statement “I also believe Mr O has touched her also.”

30. It is Mr Berzins’ evidence that A is “coping quite well” following whatever abuse has occurred to her.  He does however concede that A’s masturbation increased over time from around September 2006 onwards.  He also acknowledged that he had been informed by one of A’s teachers that she had been detected masturbating at school, which had resulted in a referral to a school counsellor. 

31. Mr Berzins arranged for A to be interviewed by a psychologist at the Child and Adolescent Mental Health Service (CAMHS).  He did not advise Ms Berzins of this appointment.  In defence of this decision he said “I am looking after A on a day to day basis.  I did not want to involve Ms Berzins.”

32. It was Mr Berzins’ evidence that A has attended CAMHS on one occasion only.  Mr Berzins deposed that he could not see any “major reason” to pursue any further counselling for A.  Apparently, he was advised by the psychologist concerned to “keep an eye on her”.  I have major concerns that Mr Berzins did not inform the psychologist of the full extent of A’s masturbation. 

33. Concerningly, some of A’s fellow students have discovered that she has been sexually abused and she has been teased at school.  This occurred about a fortnight before the end of term one 2007.  Obviously, this is deeply embarrassing to A.  It may be related to A masturbating at school.  This also seems to have been one of the precipitating factors in A being referred to a school counsellor.  Given all these factors, I do not believe that it can be said that A is coping well.  It reinforces my view that she remains a vulnerable child.

The legal principles applicable

1. The service of A’s best interests is the most important consideration in this case [Family Law Act s.60CA]. The rule in Rice & Asplund is an expression of the paramountcy principle.  It is in the best interests of children for there to be an end of the litigation concerning them and for unnecessary litigation to be avoided.  There needs to be a substantial change in a child’s circumstances before a court should revisit parenting orders recently made.

2. Whether a party should be barred from bringing a further application regarding children can be decided as a discrete preliminary issue or concurrently with the hearing of a final application.[24]   In this case, none of the parties argues that the mother’s application should be dismissed at the threshold.  However, the father argues that there has not been a change in A’s circumstances of such significance to justify a change in arrangements for her care.

   [24]  See D & Y (1995) FLC 92-581 at 81,764

3. The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.

4. Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].

5. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

6. The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].

7. The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents.  This is determined by section 65DAA.  If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time and if this is not considered to be either to be likely to be in the child’s best interest or reasonably practical, the court is then required to consider the child living with each of his or her parents “substantial and significant” periods of time.

8. The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.

9. The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria.  Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation. 

10. In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.

11. There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence. 

12. The additional considerations are more numerous [section 60CC(3)].  Again, their application must depend on the particular circumstances of the case concerned.  Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore. 

13. Issues of practicality are dealt with by section 65DAA(5).  The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned. 

The application of the rule in Rice & Asplund

1. In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration.  As the circumstances of both parents change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.

2. However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited.  Otherwise to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation. 

3. For that reason, a court will not readily re-open a case concerning parenting orders recently made.  There needs to have been a substantial change in circumstances before a court will do so.  This is the basis of the rule in Rice & Asplund. 

4. The principle which underlies the rule is that, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements.  Litigation is not helpful to children.  It is desirable that arrangements for their care be stable and so final.  For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[25]

   [25] See CDJ v VAJ (1998) FLC 92-828 at 85,449

5. It will frequently be the case that there is much controversy between the parents concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings.  This issue must be determined within the matrix of Part VII of the Family Law Act 1975.  The question essentially being whether it is likely to be in the children’s best interests to allow further litigation.

6. In arriving at its decision, the court must look to the following matters:

   ·The importance or seriousness of the issues raised, both individually and where necessary collectively;

   ·The impact that the issues are likely to have on the best interests of the children concerned;

   ·Whether the issues raised relate to change or new issues, which render it necessary to revisit the earlier decision.[26]

   [26] See King & Finneran (2001) FLC 93-079 at 88,367

7. The test is a strong one.  The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties.  That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made.  That would be putting the test too strongly.  Rather, the change of circumstances must be such that there is a “real likelihood” of a change.

8. The father does not strongly argue that the rule in Rice & Asplund applies in this case.  However, it is the thrust of his position that there have been no changes in A’s life and care, of such magnitude to justify a change in arrangements in her care since the orders of November 2005 were made.

9. I do not agree.  The issue of sexual abuse to A is of such moment that I have no doubt that it is appropriate that issues to do with A’s care should be re-litigated. 

10. These issues outweigh the potential for A to suffer detriment as a result of the prolongation of litigation concerning her. 

Determining A’s best interests – section 60CC

a)    The primary considerations

1. The applicable legislation places two considerations in a position of pre‑eminence – the need to protect the child concerned from harm as a result of exposure to abuse and family violence;  and the benefits of the child having a meaningful relationship with both parents.

2. In my assessment, both these considerations are relevant in the present case and each has application to the issue of whether it is likely to be in A’s best interest for the presumption of equal shared parental responsibility to be engaged. 

3. At the present time, I am satisfied A has a meaningful relationship with both her parents.  She knows each of them well and loves them both.  Her parents do not communicate effectively and mistrust one another.  Notwithstanding these difficult circumstances, A has maintained her relationship with her mother, through periods of time spent with her on weekends and during school holidays.

4. A’s maternal relationship is not, however, the optimal parental relationship, which the applicable legislation envisages.  The practical underpinning of how a child has a “meaningful” relationship with a parent is provided by section 65DAA.

5. The emphasis is on time, not merely on the extent of time, but also on its quality and the manner of its utilisation with the child concerned.  In this context, the court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps, most importantly, time that allows that parent to be involved in the child’s daily routine and occasions of particular significance, both to parent and child.

6. The rationale of section 65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. 

7. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting;  as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to and from school and sports training – essentially spending time with parents in more mundane situations.  In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.

8. At this stage, Ms Berzins is not able to be engaged in A’s life in this cross-section of activities.  Mr Berzins sees himself very much as being A’s primary parent and Ms Berzins as performing a subsidiary role.  His view in this regard is informed by his essentially negative opinion of Ms Berzins. 

9. Mr Berzins expressed many negative views of Ms Berzins to Mr Piercy.[27]  He believes she is lazy and lacking in ambition.  I find his assertion that his comments were taken out of context to be unconvincing.

   [27] See Family Report at paragraph 23

10. I also accept Mr Piercy’s assessment that Mr Berzins has a proprietorial view of A.[28]  This attitude was most clearly shown when Mr Berzins attended at the police station at Hxxx.  He regards the court orders as being analogous to a title deed for A.

    [28] ibid at paragraph 91

11. To Mr Piercy, Mr Berzins indicated that it would be much easier for him if Ms Berzins “wasn’t around”.[29]  In the overall circumstances of this case, I view his protestation that A needs her mother as being somewhat insincere.  On balance, it seems to me more likely that

    
    

    Ms Berzins is the parent who is more supportive of A having a meaningful relationship with both her parents.  I suspect that

    
    

    Mr Berzins is inclined to pay lip-service to the concept. 

    [29] ibid at paragraph 20

12. A is a vulnerable child.  This was Mr Piercy’s assessment and it is mine.  She has been exposed to family violence in the past.  The clearest demonstration of this was when she was forcibly removed from her mother, during the course of which Mr Berzins struck

    
    

    Ms Berzins.

13. Mr Berzins’ justification of his action in removing A was that he had to respect the Court’s orders.  I find this a somewhat simplistic rationalisation.  Rather what Mr Berzins required was respect for his authority.

14. In large part, A’s vulnerability flows from the fact that she has been sexually abused.  It seems self apparent that her habitual masturbation stems from this fact.  How seriously she has been sexually abused is difficult to say but her response to the abuse has been disturbing and prolonged.

15. I have already found that Mr O does not constitute an unacceptable risk to A.  Mr Berzins formally concedes this point.  However, it is clear from what he has said in the witness box that he does not believe his formal position.  I suspect that his formal position is informed by considerations of expediency.  Both he and Mrs M continue to believe Mr O is in some way a sinister influence on A. 

16. A has been questioned by Mrs M on three or more occasions about

    
    

    Mr O, in the hope that she may make some further damaging disclosure about him.  Mrs M disbelieves A’s recanting of any complaint about Mr O.  In fact, both Mr Berzins and Mrs M characterise A as a child who does not tell the truth. 

17. At the heart of Mr Berzins’ position is his view that B has not done anything particularly serious to A and a minor indiscretion on his [B’s] part has been blown up out of all proportion by Ms Berzins for her tactical advantage against him in the battle for the possession of A. 

18. I am concerned that Mr Berzins’ inability to hear what A says to him about the sexual assault has the potential to occasion significant psychological harm to A.  How can it not.  Mr Berzins does not believe A and is of the view that she has either been brainwashed or is lying.

19. These were concerns A herself expressed to Mr Piercy, during her interview with him.  She referred to her father and grandmother’s attempts to influence her saying “they make up stories to make me think that Mum does not want me anymore.  They say don’t forget Mr O touched you in places he shouldn’t.  I say no he didn’t.  They say yes he did yes he did.”[30]

    [30] ibid at paragraph 73

20. Mr Piercy noted that the recounting of this incident caused A to become “overtly distressed and tearful”.  A was also distressed at her perception that her father did not believe her but was rather acting at her mother’s behest.  A told Mr Piercy:

    “Dad always tells Mum that she is making me say this stuff.  I am actually saying how I feel.”

21. In my view, these are significant matters.  On balance, it seems to me likely that A will have a more profound and meaningful relationship with certainly her mother and also be more protected from psychological harm, as a consequence of her having been subjected to sexual abuse, if there is a change in her living arrangements at this stage.

22. In addition, given her father’s temperament, which includes a propensity to react violently when he feels his entitlements have been infringed, I suspect such an outcome will also be more protective of A from the deleterious consequences of exposure to family violence.

23. I accept that the father has exposed A to family violence in the past.  In my assessment, the likelihood of him behaving in a violent fashion, in future, is significant.  He is a person who has a potential to utilise force to resolve disputes in which he is involved.  As such, he is an inappropriate role model for A.

24. Although I am unaware of the precise gravamen of the charges against B, it is clear that he has behaved in an inappropriate fashion towards A.  This abuse occurred whilst A was in Mr Berzins’ care.  I agree with

    
    

    Mr Piercy’s assessment that A continues to experience serious negative consequences as a result of having been abused by B.

25. Mr Berzins has characterised this abuse as being like “playing doctors and nurses” with A.[31]  In my estimation, this is a gross underestimation of the seriousness of the abuse.  As such, I agree with Mr Piercy’s assessment that there must be major doubts about

    
    

    Mr Berzins’ capacity to protect A from future harm or to recognise if A is at risk of such harm.

    [31] ibid at paragraph 82

26. Perhaps, more importantly in this case, it is Mr Piercy’s assessment that the father’s inability to really accept that A has been abused and his attempt, in concert with Mrs M, to coerce A into stating that someone else has abused her or she is only doing her mother’s bidding by talking about it, is of itself child abuse.  I accept Mr Piercy’s assessment in this regard.[32]

The additional considerations

[32] ibid at paragraph 80

a)    A’s views

1. The applicable legislation requires me to consider any views expressed by the child concerned and any factors which may affect the weight to be given to those view, such as the child’s maturity or level of understanding.  The legislation speaks of views rather than wishes.  The latter is a more concrete concept, the former is more addressed to perceptions and feelings.[33]

   [33] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56

2. Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in the particular case.  Nor is he or she required to express an explicit wish as to which parent he or she wants to live with or spend time with. 

3. However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her.  Very often these perceptions will be ambivalent and difficult to express or quantify.  This is particularly so with younger children.  This does not mean that a child’s view should be disregarded.

4. To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these.  It is often said that children have a right to be heard.  Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[34]

   [34] See H v W (1995) FLC 92-598 at 81,944

5. It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case.  Matters of individual preference are idiosyncratic but no less important for that.  It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”.  What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[35]

   [35] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724

6. The parties themselves have different views about what outcome A would prefer from these proceedings.  In such circumstances, Mr Piercy is likely to provide the most reliable assessment of what A’s views are [Family Law Act section 60CD(2)(a)].

7. Mr Piercy described A as articulate and clear in the expression of her thoughts.  He found her courageous and honest.  In common with many children of her age, A’s first inclination was to try to be even handed with both her parents.  When pushed to be fair to herself, A said “I really want to be with Mum so much … I would like it if the Judge would pick Mum because I really want to live with Mum”.[36]

   [36] ibid at paragraph 65

8. Although A is a child of tender years, in my view, she is of sufficient maturity for her wishes to be given significant regard in the outcome of this case.  Her views, as expressed to Mr Piercy, are rationale and informed by understandable human preference.  What she told

   
   

   Mr Piercy can be summarised as follows:

   ·She feels happier and more comfortable at her mother’s home [paragraph 66];

   ·Her father’s home has less things for her to do in it [paragraph 67];

   ·Her father has less regard for her feelings.  In this regard, she recounted her distress at how she came into her father’s care in October 2005 [paragraph 68];

   ·A enjoys living with her mother, Mr O and R [paragraph 69]; and

   ·A does not appreciate her father’s attempts to influence her against her mother and Mr O [paragraphs 73-74].

b)    The nature of A’s relationship with each of her parents and other significant persons

1. I accept that A has a good relationship with each of her parents.  The interaction Mr Piercy observed between A and her mother was noted to be “happy, animated and mutually affectionate”. 

2. On the other hand, there is evidence to indicate that there is some tension in A’s relationship with her father.  Mr Berzins describes the two having arguments.  In particular, he alluded to the fact that A had told him “if you can’t manage my behaviour, you can send me home”. 

3. Ordinarily, I would not think the fact that a parent and child had “arguments” was a matter of great significance.  However, I think it is necessary for me to examine these arguments in the context of Mr Piercy’s evaluation of the relationship between A and her father.

4. Mr Berzins described his parenting style as “strict”.  He was critical of A’s behaviour, particularly the fact that she had expressed a consistent wish to return to Gxxx Primary School.  Mr Berzins described A’s attitude as “really nasty”.  Mr Berzins’ response to what he perceived as defiance on A’s part was “to show strength” or “to be forceful”.

5. Mr Piercy’s characterisation of his observation between A and

   
   

   Mr Berzins was one of “some mutual affection” but also “evident tension”.  It seems that Mr Berzins does not react well to anything which he perceives as being in defiance of his authority.

6. My overall impression of A’s respective parental relationships is that the one with her mother is more characterised by tenderness and understanding, whilst her relationship with her father is marked by tension and difficulty.

7. On any view, A’s relationship with her paternal grandmother is very close and loving.  A spends regular periods of time with her grandmother, including regular overnight visits.  To Mr Piercy, A described her grandmother as “brilliant”. 

8. It also seems clear that A has a close relationship with her brother, R and with Mr O.  In terms of Mr O, Mr Piercy has no concerns about A maintaining her relationship with him.

c)     The willingness and ability of each of A’s parents to facilitate and encourage a close and continuing relationship with the other parent

1. Mr Berzins points to the fact that he has followed the orders of November 2005 and this has ensured that A has maintained a consistent level of relationship with her mother.  This may be so.  But, in my estimation, the orders provided for the bare minimum required to maintain the relationship and this was begrudgingly given. 

2. Mr Piercy described Mr Berzins as being belligerent and angry in tone when discussing Ms Berzins.[37]  So he appeared to me.  His actions in October 2005 were not the actions of a person who was committed to the ethos of shared parenting or one who wished to include the mother in making important decisions regarding A.

   [37] ibid at paragraph 84

3. It is difficult to assess whether the mother would be supportive of the father’s relationship with A, if the boot was on the other foot.  She has never been tested in this regard.  However, it does not seem to me that she is as proprietorial of A as the father is.

d)    The likely effect on A of any change in her circumstances

1. In support of his position, the father points to the need to maintain continuity in arrangements for A’s care.  She has been living with him since October 2005 and attending the Mxxx Primary School.  She is settled into a routine, which includes visiting her paternal grandmother each week.  She attends a number of extra curricular activities.

2. The mother’s proposal envisages a change in A’s school.  It is, however, not a major change.  A would be returning to the school she attended up until October 2005.  She has friends there.  More importantly, it seems to be the case that she has maintained an emotional connection to the school. 

3. The same is true of her mother’s home.  A has lived in that home for the larger proportion of her life.  I accept that she regards it as her home.  Accordingly, the change advocated by the mother is not a major one.  It also seems to be one which A could accommodate without any great difficulty. 

4. Given that A has been the subject of some teasing at Mxxx Primary School, as a result of the discovery that she had been sexually abused, there is much to be said for A being able to have a fresh start at Gxxx Primary School, where she can put this teasing behind her.  In my estimation, such a fresh start may ease her current level of emotional vulnerability.

5. The father is highly critical of the standard of care he believes the mother will offer A, if there is a change in her care arrangements.  He categorises the mother as slatternly, preferring to smoke and use the computer, rather than to attend to domestic matters.

6. These are matters which the mother refutes.  It remains the position that the father was content to leave A in the mother’s care, during the parties’ marriage, whilst he was the family’s primary breadwinner.  He acknowledged that his work took him away from home for extended periods of time.  I am not convinced that there is a significant level of truth in the father’s complaints.

e)     The practical difficulties and expense of A spending time and communicating with her parents

1. The parties both live in suburban Adelaide, approximately eight kilometres apart from each other.  They both have access to motor vehicles, although the father recently lost his driver’s licence in respect of an unspecified charge, which is apparently still subject to court process.  However, the father’s licence has more recently been restored to him.  There are few practical impediments to A being able to spend time with both her parents.

f)     The capacity of the parties to provide for A’s emotional and intellectual needs

1. Mr Berzins asserts that he is the parent who is more committed to ensuring that A reaches her full educational and intellectual potential.  In support of his assertion, he points to the fact that the mother’s children, from her first marriage, failed to complete secondary school.

2. This may be so but Mr Berzins was also part of these children’s household, when they were reaching their maturity.  It seems somewhat hypocritical that he should hold the mother wholly responsible in this regard.  Although the mother does not seem to have an academic bent, I am not persuaded that one parent has a clear superiority over the other in regards to this issue.

3. I do, however, think the mother has a clear advantage over the father, so far as the supply of A’s emotional needs is concerned.  She struck me as being highly responsive to A’s emotional needs, in marked contrast to the father.  Moreover, it also seems likely that the mother will ensure that A receives any psychological counselling, which she requires, more readily than the father will.

4. The father has taken A to one session of counselling at CAMHS.  The mother regards this as insufficient.  She wishes to consult Dr T with A.  The mother seems to have a far more profound level of insight into the possibly seriously deleterious consequences of child abuse on a child such as A and a far greater awareness of what should be done about them.  This is a major factor in favour of the mother’s position in the case. 

g)    A’s maturity, sex, lifestyle and background

1. On her father’s side, A has a Latvian background.  Mr Berzins speaks to A in Latvian and wishes her to attend Latvian school on weekends.  It is his position that if there is a change in A’s care arrangements, the mother will not be supportive of A maintaining her sense of connection to her Latvian background and will not ensure that she continues to attend Latvian school.

2. I accept that these issues are very important to Mr Berzins.  Currently they are not important to A.  They may become more important to her when she becomes older.  I do not think that this issue is strongly determinative in this case.  As Mr Piercy notes, a decision as to whether or not A attends Latvian school is unlikely to significantly affect her wellbeing.

h)    Aboriginality

1. This is not a relevant consideration.

i)     The attitude that each party has demonstrated to the responsibilities of being a parent

1. Necessarily there is some overlap with the matters which fall for consideration under this sub-heading with matters that have been discussed under preceding sub-headings.  It is clear to me that both parents dearly love A and want the best for her in the future.   In this sense, they are both committed parents.

2. I accept that the father has ensured that A has been well fed and cared for during the time she has been in his primary care.  Mr Berzins has also ensured that A has regularly attended school.  Undoubtedly, he takes his responsibilities as a parent very seriously indeed.

3. In spite of the many serious criticisms the father has made of the mother’s parenting capacity, I am satisfied that the mother is capable of providing for A’s day to day needs and would ensure that she attends school regularly.  I accept that she has a proper regard for the responsibilities of being a parent.

4. Although the father undoubtedly loves A very much indeed, I accept Mr Piercy’s assessment that he has a proprietorial attitude towards A.  In the longer term, I am not convinced that such an attitude will be conducive to A’s sense of wellbeing and identity.

j)     Family violence

1. I have dealt with this issue under the heading of “primary considerations”.  A has been exposed to at least one episode of violence between her parents, when she was forcibly removed from her mother’s arms and her mother was struck by her father.

2. I regard this incident as a serious matter.  It is concerning to me that

   
   

   Mr Berzins maintains that his actions were reasonable and he was entitled, as of right, to do what he did.  The incident must have been upsetting to A. 

3. In addition to the immediate emotional consequences of the violence for A, a parent who uses violence against another person as a means of resolving a dispute or who is derogatory of another person, especially the other of the child’s parents, cannot be regarded as a suitable role model for children.[38]

   [38] See J G & B G (1994) 18 Fam LR 255 at 261

k)    Any Family Violence Orders

1. This is not a relevant consideration.

l)     Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings

1. Finality is generally preferable in children’s cases.  Litigation is expenses in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned.  In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant.

2. Whatever is the outcome of these proceedings, one of the parties will be bitterly disappointed.  It is also likely that the parties’ parenting relationship with one another will remain poor for the foreseeable future.  These are not happy indictors, so far as the likelihood of there being no further proceedings between the parties is concerned.

3. In my view, neither of the parties’ preferred outcomes has a clear advantage, so far as reducing the future likelihood of further litigation between the parties.

Conclusions

1. The first matter to be considered is whether the parties should have equal shared parental responsibility for A.  An order which provides for shared parental responsibility requires that parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child concerned [Family Law Act section 65DAC].

2. Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.

3. Regrettably, the parties do not respect one another and have little capacity to empathise with the position of the other.  This is particularly so in respect of Mr Berzins, who has little regard for the mother, as either a parent or a person.  Certainly, he has been unwilling to confer with her in the past, about many major issues to do with A. On several occasions, he has made unilateral decisions regarding her.

4. In all the circumstances, I do not think that it would be in A’s best interest for there to be an order that her parents have equal shared parental responsibility for her.  A herself has commented upon how difficult she finds it to move between her parent’s respective homes.[39]  Mr Piercy’s assessment is that the parties presently do not have a sufficient level of goodwill, cooperation and communication with one another to make a shared care arrangement work.

   [39]  See Family Report at paragraph 71

5. Accordingly, it seems that any proper consideration of A’s best interests dictate that she should live predominantly in one or other of her parent’s households.  In this regard, A’s clear preference is to live with her mother where, to use her own words, she will feel “happier” and “more comfortable”. 

6. Although A is a child of tender years, I think the court needs to place significant emphasis on A’s views, which seem to me to be clear and rationally based.

7. In addition, I am satisfied that Ms Berzins is better placed to provide for A’s emotional needs.  She has responded more sensitively and appropriately to the serious disclosures of sexual abuse concerning A.  In my assessment, she is more open to ensuring that A receives the proper psychological counselling and support, which she needs.

8. For all these reasons, I propose making orders along the lines proposed by the independent children’s lawyer, which are essentially those proposed by Mr Piercy.  I am satisfied that those orders will ensure that A maintains a proper and meaningful level of relationship with her father and paternal grandmother.

9. The orders ensure that Mr Berzins sees A on alternate weekends; overnight on one school day during school terms per fortnight; half of all school holidays; and on special occasions.  This is slightly more time that he was previously prepared to allow Ms Berzins to spend with A.  I am satisfied that it is sufficient time, in the difficult circumstances which prevail in this case, to allow A to feel that her father is involved in significant aspects of her life.  However, A’s emotional well being will also be preserved.

10. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and sixty-seven (267) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:      P Smith

Date:              9 October 2007