Blinac and Manolo

FAMILY COURT OF AUSTRALIA

BLINAC & MANOLO AND ANOR

[2008] FamCA 932

FAMILY LAW – CHILDREN – rebuttal of presumption of equal shared parental responsibility – whether in child’s best interests to live with father – unacceptable risk of child abuse – role of the intervenor

Family Law Act 1975 (Cth)

B and B, Family Law Reform Act 1995 (1997) FLC 92-755
M and M (1987-1989) 12 Fam LR 606

APPLICANT:

Ms Blinac

RESPONDENT:

Mr Manolo

INTERVENOR:

NSW Department of Community Services

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

FILE NUMBER:

SYF

2006

DATE DELIVERED:

15 October 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATES:

13 April 2007; 28-31 August 2007; 28 September 2007;

30 June 2008; 14 October 2008

REPRESENTATION

APPLICANT:	No appearance
SOLICITOR FOR THE RESPONDENT:	Williamson Isabella, Solicitors
SOLICITOR FOR THE INTERVENOR:	NSW Crown Solicitor’s Office
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Lukes Law, Solicitors

Orders

That all current parenting orders in relation to … (“the child”) born … September 2002 are discharged.
That the father shall have sole parental responsibility for the child AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That the child shall live with the father.
That upon the mother giving 14 days written notice to the Director-General of the NSW Department of Community Services (“the Director-General”) of her desire to spend time with the child the parties shall ensure that the child spend time with the mother not less than once in each calendar month for a period of no more than six (6) hours or as agreed between the parties.
That the period of time referred to in Order 4 shall be supervised by a delegate of the Director-General for a period of two (2) years from the date of these Orders.
That the mother may send to the child letters, cards or presents and the father shall ensure that the same are suitable for the child and if suitable ensure that the child receives the same and encourages her to respond to the mother.
That the mother and father shall continue to seek guidance from the Director-General or her delegate and to follow all reasonable recommendations from the Director-General or her delegate concerning the day-to-day care of the child.
That the mother and the father shall each keep the Director-General informed of their respective residential addresses and telephone numbers and shall inform the Director-General of the names and dates of birth of all other persons living in their respective residences for a period of two (2) years from the date of these Orders.
That the father shall not commence proceedings in relation to the child and his children of his prior relationship without first giving the Director-General 28 days prior notice in writing of his intention to bring such proceedings, unless otherwise ordered.
That neither parent shall denigrate the other parent or members of the other parent’s family or any person with whom the other parent has a domestic relationship in the hearing or presence of the child nor shall either parent allow any other person to do so.
That neither parent shall discuss these proceedings or any issue arising out of these proceedings with the child nor shall either parent allow any third person to do so except as required for the purposes of these Orders and/or as approved by the Director-General.
That Order 3 is made upon terms that the father continue with the treatment he is receiving from his psychiatrist and that he undertakes any parenting program recommended by his treating psychiatrist.
That the father shall provide to the Director-General the details of his treating psychiatrist and authorities for that psychiatrist to provide information and written documentation to the Director-General as the Director-General may request.
That the intervenor and the independent children’s lawyer may publish to the father’s treating psychiatrist copies of the following documents:
(a)The reports of Dr R, psychiatrist being Exhibits 2 and 20.
(b)The Orders made this day.
That the mother is restrained from bringing the child into the company of Mr A or into any premises in which he is present.
Liberty is granted to the mother to apply for an order setting aside, varying or suspending all or any of the orders made this day upon seven (7) days written notice being given.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF14 of 2006

MS BLINAC

Applicant

And

MR MANOLO

Respondent

REASONS FOR JUDGMENT

Introduction

Pursuant to her Application for Final Orders filed 6 January 2006, the applicant mother sought parenting orders which provided for the child of her relationship with the respondent father, a daughter born in September 2002 (“the child”) to reside with her; that each of the parties have sole responsibility for the day‑to‑day care; welfare and development of the child while she is in his or her care; the father spend periods of time with the child being each alternative weekend and such other times as the parties may agree. In addition, the mother sought orders that the place of change-over be at her residence and the father be restrained from denigrating the mother in the presence or hearing of the child.
The mother’s application was amended and marked Exhibit 3. The mother’s amended application sought orders that she have sole parental responsibility for the child; the child live with her; that after the expiration of three months from the date of the orders the father spend time with the child on the first Sunday of each month for a period of six hours commencing at 9.00am; and that the place of change-over be at Centacare Campbelltown. Ancillary orders were also sought.
The father sought orders in accordance with his Further Amended Response filed 10 October 2006. The orders sought by the father were that the child live with him and that the mother spend periods of time with the child each second Saturday at Centacare from 3.00 pm to 5.00 pm.
At the commencement of the hearing, leave was granted to the father to seek orders in accordance with Exhibit 3. The orders sought are that the child live with the father; the mother spend time with the child each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday; that the place of change-over be at P train station. An injunction was sought that the mother be restrained from bringing the child into contact with Mr A.
As is apparent from Exhibit 3 the father did not seek to rebut the presumption of equal shared parental responsibility pursuant to s.61DA.
The intervenor sought orders in accordance with Exhibit 5. The substantive parenting orders were in the same terms as those sought by the mother. Ancillary orders were also sought.
At the conclusion of the evidence received by me at the end of last year, the independent children’s lawyer sought orders in accordance with Exhibit 18. The orders so sought were that the child live with the mother; the father deliver the child to Centacare Campbelltown for collection by her to enable the child to commence living with her; that the mother accept supervision and guidance by the New South Wales Department of Community Services in relation to her parenting of the child; the mother have the sole parental responsibility for the long‑term care, welfare and development of the child; the father spend time with the child for a period of six hours from 10.00am on the first Sunday of each month with the first occasion to take place following three months from the date of the orders; the place of change-over be at Centacare Campbelltown; the parties register with Centacare for the purposes of facilitating its services to enable the father to spend time with the child in accordance with the orders; and that neither party denigrate the other or their family in the presence or hearing of the child.
Subsequent events produced a dramatic change to the approach in this litigation.
During this year, my associate received notice of a proposed application by the father supported by the intervenor to reopen his case.
Ultimately, an application was made by the father to that effect. That application was supported by the intervenor.
The matter was listed before me on 30 June 2008. All parties were represented with the exception of the mother. The mother did not appear in person. I was satisfied that the mother had been given appropriate notice and had been properly served with the relevant application and copies of affidavits.
On that day, the following orders were made:
“1.That orders are made in terms of paragraphs 1 and 2 of the Response to an Application in a Case dated 26 June 2008 filed on behalf of the father as follows:
‘1. That leave be granted to re-open the proceedings.
2.That an updated report from Dr [R] be ordered, the report deal with:
(a)the supports required for the father to adequately care for the child both short and long-term and the willingness and ability of the father to utilize these supports;
(b)the impact on the child of placement in foster care until she attains 18 years of age;
(c)if placement with the father is not a suitable long-term option for the child:
(i)what form transition to foster care should take; and
(ii)what contact should take place between the father and the child,
(d)whether it is still viable for the child to live with the mother;
(e)if so, then what, if any services would be necessary to support the mother;
(f)what time the child should spend with the mother, in the event that she does not live with her.’
2.That the mother and father fully co-operate with all requests for interviews, attendances and information sought by the court appointed expert, Dr [R] including attendance by the child with the father at Dr [R’s] rooms.
3. That Dr [R] provide an updated report as a matter of urgency.
NOTATIONS:
A.I am satisfied that, with regard to the letters dated 13 May 2008 and 11 June 2008 passing between the intervenor and former solicitors for the mother, proper service has taken place of the application and supporting affidavits dealt with today.
B.Both the intervenor and the independent children’s lawyer will use their best endeavours to provide the necessary information and guidance to the mother for the purpose of her seeking, as a matter of urgency, a fresh grant of legal aid so that she may be legally represented for the purpose of additional preparation and appearance at court for an estimated period of one (1) day when the proceedings are re-listed before me.
C.If possible, the proceedings will be administratively fixed for the resumption of the hearing for an estimated period of one (1) day.”
I noted amongst other things that the intervenor and independent children’s lawyer will use their best endeavours to provide the necessary information and guidance to the mother for the purpose of her seeking as a matter of urgency a fresh grant of legal aid so that she may be legally represented to carry out additional preparation and to appear at Court for an estimated period of one day when the proceedings are relisted before me.
On 15 September 2008 I made further orders in Chambers, namely:
(a)That a copy of the report of Dr [R], psychiatrist dated 30 August 2008 be immediately furnished to the legal representatives for the mother and the mother direct.
(b)That the resumption of the part‑heard hearing is fixed for 10.00am, 14 October 2008.
(c)That the proper officers of the New South Wales Department of Community Services attempt personal service of the orders made 15 September 2008 and the report of Dr [R] upon the mother or by leaving copies of those documents addressed to her at her last known place of abode.
I am satisfied that the orders in relation to service made on 15 September 2008 were complied with, and that the mother has received notice of not only the relevant documents but has been made aware and has at all material times been aware of the date fixed for the resumption of the hearing which took place before me yesterday. In that regard, I refer to and accept the evidence of Chris Woollard, solicitor in his Affidavit affirmed on 10 October 2008.
As a consequence, the matter proceeded before me yesterday on an undefended basis. There was no appearance by or for the mother, nor was any communication received by or from her so far as I am aware in which she sought an adjournment, or other orders or directions that may have been made to vacate or adjourn the hearing before me yesterday. Indeed, the affidavit of Chris Woollard, solicitor and whose evidence I have accepted, makes it clear that the mother had changed her approach to these proceedings in that she was consenting to orders being made whereby the child would live with the father and that she have periodic periods of time with the child in her care.
Consequently, the hearing proceeded with further evidence before me, being the Affidavit of the father sworn on 29 September 2008; the Affidavit of Chris Woollard, solicitor affirmed on 10 October 2008; and the Affidavit of Mr K affirmed 8 October 2008. Mr K is the child protection caseworker who had previously given evidence in the proceedings. In addition, the updated report of Dr R dated 30 August 2008 became Exhibit 20.
Further orders were sought by the intervenor in accordance with Exhibit 21. Those orders submitted by counsel for the intervenor were not opposed by either the independent children’s lawyer or the father.
I heard further brief submissions. Essentially, the submissions made by counsel for the intervenor were adopted by counsel for the independent children’s lawyer. The solicitor for the father did not make any further submissions. However, the solicitor for the father informed me that he did not oppose the orders as sought by the intervenor as set forth in Exhibit 21.

Historical background

The mother is 25 years of age having been born in January 1983 and is a student.
The father is 44 years of age and a pensioner.
The child lived with the mother following separation of the parties which occurred approximately six months after the child was born. The child continued to live with the mother until 29 November 2006 when Judicial Registrar Johnson made interim orders that the child live with the father. The child has lived with the father subject to such periods of time that the child has been in the care of the mother. Those periods of time have been under the general supervision and guidance of the intervenor by one or other of its casework officers.
The mother has not spent any periods of time nor communicated with the child since January 2008. The intervenor has had limited communication with the mother despite efforts from time to time to do so. Concern had been raised by the intervenor as to whether the mother still resided in her previous N premises or whether she still resides in Australia. It is clear from the affidavit of Chris Woollard that the mother remains in Australia and that he has had recent communications with her. Implicitly, the mother has continued to reside at the N premises.
The issues for determination included, but were not limited to, allegations of domestic violence as between the father and mother; sexual abuse alleged to have been perpetrated by a male friend of the mother, Mr A; child abuse allegedly perpetrated by the mother; and the capacity of each of the parties to provide for the physical, emotional and intellectual needs of the child.
The following are brief relevant historical matters.
On 12 February 2002 in the Local Court an interim apprehended violence order was made for the protection of the mother from the father.
On 12 February 2003 in the Local Court apprehended violence orders were made for the protection of the father and the mother from each other for a period of two years.
On 12 January 2006 in the Local Court a recovery order was made on the application of the mother for the return of the child to her from the care of the father.
On 22 March 2006 a separate representative for the child was appointed, now referred to as the independent children’s lawyer. Directions were made.
On 26 June 2006 Judicial Registrar Johnson made interim parenting orders determining that the child live with the mother and that the father have "contact" with the child supervised at the Centacare Children’s Contact Service each alternate weekend for a period of two hours or such other times has specified by Centacare.
On 29 November 2006 Judicial Registrar Johnson made further interim orders requiring the child to live with the father until 6.00 pm 19 December 2006, and during that time the mother have telephone communication with the child on occasions initiated by her. Directions were made.
On 31 January 2007 Judicial Registrar Loughlan made interim parenting orders on an undefended basis. Those orders provided for the child to live with the father and the mother to have telephone communication with her on the basis that the mother initiated those calls. Directions were made.
On 26 March 2007 in the Local Court an apprehended violence order was made ex parte, the evidence being unclear, for the protection of the father and the child from the mother for a period of two years.
On 13 April 2007 in the course of Day 1 of the Less Adversarial Trial (“LAT”) interim parenting orders were made by consent. Those orders provided for the mother to spend periods of time with the child facilitated by the intervenor at the mother’s premises at N from about 10.00am to 3.00 pm, the first occasion to take place 20 April 2007. Directions were made.
The hearing proceeded before me in the latter half of 2007.
Further orders were made in 2008 to which earlier reference has been made.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in s 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in ss 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in s 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects.
The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.
It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755

Relevant matters pursuant to section 60cc

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[2] The exception is found in s 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[2] Section 60CC(1)
The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[3]
[3] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Similarly, the second primary consideration relating to the need to protect a child from physical or psychological harm, will require findings on a historical basis of any family violence and consideration of family violence orders, each of which are discrete matters which are part and parcel of what are described as “additional considerations”. Consequently, I propose to make findings of fact in relation to matters that are signposted in s 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the child and the parenting orders that will be made.
I propose to make these reasons for judgment truncated in view of the conclusion of the hearing that took place yesterday which proceeded on an undefended basis. On one view of it, the consent of the mother was provided for an order that the child live with the father and that she have periodic periods of time which may be spent with the child in her care.

Relevant matters pursuant to section 60CC

The views expressed by the child and relevant factors

The child is six years of age and there is an absence of any direct evidence of her views in relation to relevant matters. However, it is undisputed that the child has a loving relationship and attachment with the mother and the father. Therefore, I find it is implicit that the child has expressed an indirect view to spend periods of time with each of the parties.

The nature of the relationship with the child with each of the parties and other persons

I have referred to the loving relationship and attachment that the child has to each of the parties which is not a matter of controversy. In support of that conclusion I have relied upon and accept the evidence of Dr R, psychiatrist as set forth in Exhibit 2 and more recently Exhibit 20.

Willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between them and the other parent

The evidence before me demonstrates that the parties have generally co-operated so far as periods of time that the child might spend with each of them. This is subject to various periods when the mother was far from positive in terms of seeking to arrange periods of time that the child spend with her, and on other occasions when the father had been obstructive. However, due to the highly commendable efforts of Mr K and other officers of the intervenor regular and reliable periods of time that the child might spend with the mother have been put into effect.
The evidence before me makes it clear that the father has co-operated for those purposes.
Consequently, I find that with the assistance of the intervenor the parties have shown a willingness and ability to facilitate a close and continuing relationship between the child and each of the parties.

Likely effect of any changes in the child's circumstances including separation from either parent or child or person with whom the child has been living

This has been a matter of considerable concern in the context of the proceedings having been defended until recent times.
The child has had a loving relationship with each of the parties.
The child has been living with the father since during 2006.
Since during 2007 until January 2008 the child has had regular and reliable periods of time spent with the mother during each month. It had been clear, on one view of the evidence, that the child being separated from living with the father in order to live with the mother would enhance that relationship as between child and mother, and at the same time using the good offices of the intervenor, the child would continue to spend regular periods of time during the month with the father. Thus the child would have the benefit of a meaningful relationship with each of the parties. There had been little, if any, evidence to suggest that the child would suffer emotional trauma by living with the mother as opposed to continuing to live with the father. However, events have dramatically changed since January 2008 for the reasons previously referred to.
Essentially, the child has continued to live with the father since January 2008, continuing the pattern of living with him and being under his care. This pattern had existed for a considerable time beforehand. Further, the child has not spent any periods of time with the mother since during January 2008.
The expert evidence of Dr R as set forth in Exhibit 20 supplemented by the evidence of Mr K leads me to conclude that at least in the foreseeable future, the child will continue to receive appropriate care from the father under the guidance of the intervenor.
Given that the mother has ceased to avail herself of the opportunity, which she previously took to spend periods of time with the child, I am left in a situation where I do not have up‑to‑date evidence of all the circumstances in which the mother is conducting her life: in premises at N or otherwise; whether she is continuing to be a student and if so, the hours of study which may take her away from the care of the child; whether she still has a relationship with Mr A or any other significant adults; and her proposals for the future care of the child.
In those circumstances, I find that there is likely to be an adverse effect upon the child’s future care and upbringing were the child to commence living with the mother as opposed to the father.

Practical difficulty and expense of the child spending time with and communicating with a parent

There obviously has been practical difficulty and expense given the distance between the places of abode of each of the parties.
However, those matters have been overcome due to the commendable assistance provided to the parties and the child by the intervenor through the caseworker. The intervenor has indicated by submissions and the orders sought in Exhibit 21 that he or she will retain a direct role to facilitate the care of the child by each of the parties, subject to orders made by this Court.
Consequently, I find that the practical difficulty and expense of the child spending time with each of the parties is overcome by the role played by the intervenor in facilitating the child living with the father, as has occurred in the past, and spending periods of time with the mother.

Capacity of the parents to provide for the needs of the child

I make the following findings.
No issue was raised in relation to the capacity of either of the parties to provide for the physical needs of the child in terms of the premises that each of the parties have to accommodate themselves as well as the child.
However, an issue did arise in relation to the physical needs of the child insofar as her safety was concerned in view of the child abuse allegations carried out by the mother’s friend Mr A, as well as allegations made by each party of the other in relation to physical abuse of the child, in the nature of discipline.
So far as the latter is concerned, I am not satisfied on the evidence that either of the parties have physically abused the child. Although the matter was raised as an issue it received scant attention during the course of the evidence, particularly so far as cross‑examination was concerned.
With regard to the matter of child abuse allegedly perpetrated by Mr A that will be the subject of subsequent findings in this judgment.

Child's emotional and intellectual needs

There are serious concerns with regard to the child’s emotional and intellectual needs.
So far as the father is concerned, those matters have been elaborated upon in considerable detail not only in the evidence of Mr K but also in the two reports of Dr R. Suffice to say that the father has average or below average intellectual capacity which has had a residual effect so far as his maturity is concerned, sensitivity and ability to appreciate on a more sophisticated basis the needs of the child, both emotional and intellectual. Nothing is to be gained, given the course of events in which the proceedings are now undefended by setting out in detail the evidence of Dr R and Mr K. I accept the evidence as provided by Mr K in his reports and oral evidence. I also accept the evidence of Dr R in his two reports as well as his oral evidence.
In relation to Dr R’s most recent report being Exhibit 20 which is usefully summarised by Mr K in his Affidavit of 8 October 2008 (see pages 6 and 7) including consideration of an option of possible foster care. That is a matter which received attention by Dr R in Exhibit 20. I adopt the summary provided by Mr K which was very useful in both its accuracy and succinctness. There is nothing that I can add to this summary.
Consequently, I have concluded that so far as the father is concerned he has a limited capacity to provide for the child’s emotional and intellectual needs. That limitation does not bear upon the child in the immediate future but there are significant concerns once the child enters teenage years and/or puberty.
The intervenor has sought orders for its continued involvement in the ongoing care of the child by the father and also for him receiving the benefit of psychiatric consultations and treatment, if necessary. It is clear that the proposal of the intervenor is to continue to provide guidance and general supervision. The intervenor has done so in the past in a reliable and professional manner. I have no reason to doubt that the intervenor will continue to do so in the future.
So far as the mother is concerned, whilst there is no evidence of any real substance which I can accept to suggest that the mother has any intellectual disability or that her intellect is less than average. Indeed, the mother’s intellectual ability may be above average given her acceptance as a student and the manner in which she has pursued her course. Nonetheless, there are matters of concern so far as her capacity to provide for the child’s emotional needs. The mother has been erratic in terms of the manner in which she has cared for the child since the parties have separated. There have been significant periods of time where the mother has not communicated with the child nor taken steps to ensure that an application is made enabling her to do so and to spend periods of time with the child.
From a practical viewpoint, I recognise the limitations of a person who has little available funds and perhaps insufficient support from family or others to enable her to seek and obtain legal aid. However, those matters were overcome as a result of efforts by the intervenor and interim parenting orders that were made. A pattern of the child spending time with the mother was established and which continued for several months. For the mother to cease to have any time with the child let alone communication with her since January 2008 is disturbing to say the least. The potential detrimental effect upon the child so far as her emotional needs for parental nurturing and care would not require any expert evidence. There is no direct explanation given by the mother. I do have indirect evidence of the mother’s approach as set out in the affidavit of Chris Woollard, to which earlier reference has been made. It is unsatisfactory that there is an absence of the mother’s appreciation of the effect upon the child of ceasing to spend periods of time with her.
Consequently, I conclude that the mother has a limited capacity to a significant extent to provide for the emotional needs of the child.

The child’s maturity

The evidence before me demonstrates that the child has the maturity commensurate with a child of her age.
The child is of a mixed cultural background in that the mother is Filipino and the father appears to be Anglo‑Saxon. There are considerable benefits to the child of continuing to be exposed to and have the benefit of both cultures.
Unfortunately, due to the mother’s approach of ceasing to have any further contact with the child, apparently of her own volition, those benefits are greatly circumscribed.

The parental attitude of the parties

With regard to the parental attitude of each of the parties, I rely on my previous findings so far as their capacity to provide for the range of needs of the child.

Family violence

In relation to family violence and family violence orders, it is clear that family violence orders have been made, earlier referred to in this judgment.
With regard to family violence, there have been a number of allegations of violent behaviour by one party towards the other.
The allegations by the mother have been denied by the father.
In relation to any actual acts of violence or threat of violence, the father’s case has been that where he has acted in that manner it has only been due to self‑defence or provocation by the mother. I do not accept his evidence. The evidence of the father’s assault of the mother early in 2006 and her subsequent hospital and medical treatment leaves me to conclude that the father has been violent to the mother and I make findings accordingly.
So far as the allegations of the mother being violent to the father. Again, this was not a matter which was pursued in any great detail during the course of the oral evidence.
I am not satisfied on the balance of probabilities that the mother has been violent to the father.
The next serious matter is the allegation of child sexual abuse.
Whilst the father’s case had been that Mr A had sexually abused the child and that findings should be made which reflect those allegations, it became apparent that the case as continued for the father was that I should make a finding of unacceptable risk of child abuse by Mr A.
The evidence in relation to the allegation of child sexual abuse has largely but not exclusively been based upon notifications of disclosures made by the child. In many of the instances referred to, in my view the disclosures were unreliable. Neither the mother nor the father were able to give evidence of any reliability which I could accept having regard to the provisions of s 140 of the Commonwealth Evidence Act which would lead me to conclude that there was an unacceptable risk of child sexual abuse at the instigation of Mr A. However, there is an exception to that approach and that is that there have been at least one if not more than one clear disclosure by the child apparently in spontaneous circumstances such as one incident at the beach which is of considerable concern.
I accept the evidence of the child’s statements in that regard. Having done so, I am not satisfied that I should conclude that Mr A has sexually abused the child. There is no expert evidence to corroborate the allegations. However, those disclosures, the circumstances in which they were made and the evidence of Mr A which I found at times to be less than convincing having observed him give his evidence and the manner in which he gave it, has led me to consider whether I should make a finding of unacceptable risk of child abuse.
The jurisprudential approach on that subject is set out in the leading case from the High Court of M and M, during the course of their Honours judgments, it was stated as follows:
“In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof which is due to the factors mentioned in Briginshaw. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. In resolving the wider issue, the Court must determine whether, on the evidence, there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of the child, the Family Court is frequently called upon to assess and evaluate the likelihood and possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. Existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of the child, is a fundamental matter to be taken into account in deciding issues of custody and access.”[4]
[4] M and M (1987-1989) 12 Fam LR 606 at 610-611.
In my view, the apex of focus must be upon the protection of the child from a risk of abuse. That is made clear as a result of the 2006 amendments to the Act.
It is one of the two primary considerations in s 60CC to which earlier reference has been made.
I have not lost sight of the fact that should such a finding be made of unacceptable risk to the child in the company of Mr A which has implications for his reputation and perhaps relationship with the mother and others.
Consequently, such a finding is one where the provisions of s 140 must be applied, and although the civil standard of proof applies, given the gravity of the offence or the gravity of a finding particular caution or care should be utilised by a trial Judge in relation to such matters.
Some past judgments of the Court have emphasised the latter matters including the distress and pain that would be afforded to a person who is the subject of a finding of unacceptable risk. Undoubtedly, those comments are correct. On the other hand, a failure to make such a finding if it is open to a trial Judge might also create considerable pain and difficulty for the child. It is the child who is the principal focus not another person as is emphasised in s 60CC(2).
That is the approach I propose to follow.
Applying the principles to which I have referred, I am satisfied that there is an unacceptable risk of child abuse by Mr A given the evidence which I have accepted and the subject of my previous finding of the disclosure made by the child both on the particular occasion referred and cumulatively with past disclosures.
I am not in a position to conclude as to whether or not the child has been coached or influenced by the father or others to make the statements which she has made. Whilst it is a possibility, nonetheless the evidence is not of sufficient substance and reliability for me to make such a finding of fact.

Orders least likely to lead to further proceedings

With regard to the preference for an order least likely to lead to institution of further proceedings, given the apparent deliberate action by the mother in ceasing to take an active part in these proceedings and her decision to cease further contact with the child since January 2008, I am of the view that an order whereby the child is to live with the father is an order least likely to lead to the institution of further proceedings in relation to the child by comparison with an order that the child live with the mother.

Other relevant matters

No other matters are relevant.
No other submissions were made.

Conclusion

In relation to s 61DA which sets out the presumption of equal shared parental responsibility ultimately the case for the father and the intervenor was that the father should have sole parental responsibility thereby rebutting the presumption.
Counsel for the intervenor yesterday informed me that reliance was placed upon ss 61DA(2) and 61DA(4).
I find that it is in the best interests of the child that the presumption be rebutted and that the father have sole parental responsibility.
My finding attracts the provisions of s61DA(4).
My reasons for making that conclusion are that the father has had the care of the child since during 2006.
The father’s care of the child has been one which has been elevated to sole carer since January 2008 as the child has not spent any periods of time with the mother, apparently of the mother’s own volition.
In that regard, the father has had to continue to make all parenting decisions without any input or consultation or attempts to do so by the mother throughout this year.
The father has had the guidance of Mr K of the intervenor. There is no evidence before me that the father has done anything other than to accept that guidance.
There is also an absence of evidence before me to suggest that the father may be remiss in attending to the child’s daily care and the decisions that necessarily are part of it.
So far as Dr R was concerned the child has been well cared for to date by the father and has positive aspects to her personality, appearance and progress as set out in Exhibit 20.
I accept the evidence in relation to all of those matters and having regard to those findings and the lack of any active role by the mother in the ongoing care of the child and particularly since January 2008 which have led me to conclude that it is in the best interests of the child that the father have the sole parental responsibility for the child.
As a result of those findings it is not necessary for me to consider the submission in relation to s61DA(2) that is, the ground related to family violence. Implicitly, for the father to succeed in relation to that ground it would be necessary to persuade me to make findings of fact that the mother has been violent to the father or that the child has suffered from violence or abuse at the hands of a person associated with the mother and beyond her control. Whilst I have made findings in relation to unacceptable risk of child abuse, the nature of the findings and the evidence that I have summarily reviewed in that regard do not satisfy me that s61DA(2) has been established.
With regard to with whom the child should live and periods of time that the child might spend with the other party, I have concluded that it is in the child's best interests that she live with the father and spend periods of time with the mother on terms as sought by the intervenor contained in Exhibit 21.
The child has lived with the father continuously since 2006 subject to such periods of time that she has spent, usually over a weekend, under the guidance and general supervision of caseworkers of the intervenor since during 2007 up until January 2008. The child has continued to live in the father's sole care without spending any periods of time with the mother since January 2008.
I accept the evidence of Dr R in relation to the manner in which the child presented herself, aspects of her care, personality and general matters affecting her care as set out in Exhibit 20. In addition, I place considerable weight upon the mother ceasing to actively participate in these proceedings on the evidence of Chris Woollard as set out in his Affidavit affirmed on 10 October 2008 the mother has altered her previous approach in this litigation in that she consents to the child living with the father.
I have not lost sight of the difficulties in terms of future care that might be given by the father to the child as explained by Dr R in Exhibit 20 and Mr K in his Affidavit sworn 8 October 2008.
The only other realistic option, given the mother’s cessation of seeking an order that the child live with her, is foster care. There are difficulties in that regard, which are explained by Dr R in Exhibit 20 and Mr K’s recent affidavit. I do not consider that foster care represents a realistic and practical alternative.
The manner and circumstances of the care of the child by the father including potential difficulties as well as beneficial effects to date are matters which are known. I have no evidence before me of when foster care could take place or with whom and what impact on the child of living with strangers given the attachments which she has formed with her father or how she would progress in such a situation compared to the future care which may be given by the father notwithstanding difficulties in the long term. Consequently, the alternative of foster care is not one which I accept as being in the child's best interests.
In my view, it is clearly in the child's best interests that she be able to resume having care, perhaps during the weekend, given by the mother. Orders were sought in that regard by the intervenor as contained in Exhibit 21 were supported by the independent children’s lawyer. The father, through his solicitor, yesterday did not seek to make any contrary submission. Should periods of care be provided for the mother with the child, essentially, it would capture the same elements of interim orders that had been in place during 2007, which had been availed of by the mother facilitated by the caseworkers for the intervenor.
I will make orders in that regard. I note that the mother takes a similar approach, as is evidenced in the affidavit of Chris Woollard.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Date: 5 November 2008

[2008] FamCA 932

15 October 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies

Injunction