Bolton and Whittaker and Anor

[2010] FamCA 286

FAMILY COURT OF AUSTRALIA

BOLTON & WHITTAKER AND ANOR [2010] FamCA 286

FAMILY LAW – CHILDREN - Parental responsibility - Conflict between the paternal family and the mother since separation - Parties are unable to communicate at all - The mother have sole parental responsibility for the child
FAMILY LAW – CHILDREN – With whom a child lives - The mother and father are both seeking orders for the child to live with them and spend time with the other parent - Father and paternal grandmother allege that the child has been inflicted with physical abuse in the mother’s care - The mother denies the allegations - Allegations not supported by independent evidence - Expert evidence - Emotional abuse of the child - The child live with the mother and spend supervised time with the father for two hours every third weekend

Family Law Act 1975 (Cth)

A v A (1998) FLC 92-800
B & B (1993) FLC 92-357
Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
M & M (1988) 166 CLR 69
Moose & Moose (2008) FLC 93-375
Napier & Hepburn (2006) FLC 93-303
Re C & J (1996) 20 Fam LR 930
Rice v Asplund (1979) FLC 90-725
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
WK v SR (1997) FLC 92-787

APPLICANT: Mr Bolton

RESPONDENT: Ms Whittaker

1^ST INTERVENOR: Director-General of the New South Wales Department of Human Services

2^ND INTERVENOR: Mrs Bolton

INDEPENDENT CHILDREN’S LAWYER: Mr Scally,
Legal Aid NSW

FILE NUMBER: NCC 2619 of 2007

DATE DELIVERED: 20 April 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 8, 9, 10, & 11 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Mr Gowran,
Paul Gowran & Co

COUNSEL FOR THE 1^ST INTERVENOR Ms Boyle

SOLICITOR FOR THE 1^ST INTERVENOR Ms Ava-Jones,
Crown Solicitor’s Office

COUNSEL FOR THE 2^ND INTERVENOR: Not Applicable

SOLICITOR FOR THE 2^ND INTERVENOR: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Scally,
Legal Aid NSW

Orders

1. All former parenting orders are discharged.

2. The mother shall have sole parental responsibility for the child L, born … March 2004 (“the child”).

3. The child shall live with the mother.

4. Each of the parties shall take all reasonable steps to ensure that the child spends supervised time with the father for two hours every third weekend, commencing on Saturday 1 May 2010.

5. For the purpose of implementing Order 4 hereof:

   (a)The supervisor of the time spent by the child with the father shall be staff at “Relationships Australia”, staff at “Life Without Barriers”, Ms W, Ms T, or some other person or entity nominated by one of those organisations or persons, in that order of priority.

   (b)In the event of disagreement between the parties, the mother shall do all such things necessary to engage the supervisor.

   (c)The father shall pay any costs of the supervisor.

   (d)The time that is to be spent by the child with the father each third weekend shall commence at the time designated by the supervisor.

   (e)The venue at which the time is to be spent by the child with the father each third weekend shall be designated by the supervisor.

   (f)The mother shall cause the delivery of the child to, and the collection of the child from, the designated venue at the commencement and conclusion of the time spent by the child with the father.

   (g)The mother and father shall comply with all reasonable requests and directions of the supervisor.

6. Leave is granted to the mother and father to provide to the supervisor:

   (a)A copy of the affidavit of Ms S, filed in these proceedings on 14 May 2009, and

   (b)A copy of these orders.

7. The mother shall do all things necessary to obtain the earliest possible appointment for the child to consult with a paediatrician, and to ensure the child’s attendance at that appointment.

8. The mother shall do all things necessary to obtain the earliest possible appointments for the child to consult with any other medical specialist to whom the child is referred by the paediatrician, and to ensure the child’s attendances at those appointments.

9. Leave is granted to the mother to provide to the paediatrician, and any other medical specialist to whom the child is referred by that paediatrician, a copy of the affidavit of Ms S filed in these proceedings on 14 May 2009.

10. The mother shall:

    (a)Notify the father of the results of the appointments referred to in Orders 7 and 8 hereof.

    (b)Notify the father of any medical emergency, illness or injury suffered by the child whilst in her care warranting treatment by a third party, and

    (c)Authorise any treating health professionals to communicate with the father about the condition and treatment of the child.

11. The father and paternal grandmother are each restrained, and will each use their best endeavours to restrain the paternal grandfather, from attending any school functions, parent/teacher meetings, sporting events, medical appointments, or other activities, where the child is present.

12. The father and paternal grandmother are each restrained, and will each use their best endeavours to restrain the paternal grandfather, from spending time or communicating with the child at his school.

13. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms.

14. The father and paternal grandmother are each restrained, and will each use their best endeavours to restrain the paternal grandfather, from examining the child’s body for signs of injury.

15. The father and paternal grandmother are each restrained from denigrating the mother or member of the maternal family in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the mother or member of the maternal family.

16. The mother is restrained from denigrating the father or member of the paternal family in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the father or member of the paternal family.

17. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

18. The mother is restrained from permitting the child to refer to any person other than the father by use of the terms “Dad” and “Daddy”, except Mr J, whom the mother may permit the child to refer to as “Daddy J”.

19. The mother is restrained from using or permitting the use of any surname other than “Bolton” for the child.

20. Pursuant to s 64D(2) of the Family Law Act, these orders may only be varied by subsequent order of the Court and not by a parenting plan.

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

22. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

23. All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

24. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2619 of 2007

MR BOLTON

Applicant

And

MS WHITTAKER

Respondent

And

DIRECTOR-GENERAL OF THE NEW SOUTH WALES DEPARTMENT OF HUMAN SERVICES

1^st Intervenor

And

MRS BOLTON

2^nd Intervenor

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. This litigation concerns the parenting orders that should be made in respect of the child L, born in March 2004 (“the child”).  The child is now aged six years and is in Year 1 at school.

2. The parenting orders in respect of the child are being contested by both biological parents, the paternal grandmother, the Director-General of the New South Wales Department of Human Services, and the Independent Children’s Lawyer.

3. Although the biological parents separated in August 2005 and reached agreement about final parenting orders in respect of the child on 13 December 2005, litigation between them has been existent in one form or other since 2006.

4. Because of the conflict between the biological parents, on 30 October 2008 the Court appointed an Independent Children’s Lawyer and invited the Director-General of the New South Wales Department of Human Services to intervene in the proceedings.

5. The paternal grandparents have demonstrated a high level of interest in the litigation.  At her request, and with the consent of the other parties, the Court made an order on 6 November 2009 permitting the paternal grandmother to intervene in the proceedings.  The paternal grandmother informed the Court several weeks later on 19 November 2009 that she no longer intended to participate in the proceedings as a party, but by the time the matter came on for final hearing on 8 March 2010 the paternal grandmother reversed her decision.  She participated in the final hearing as a party to the proceedings and not merely as a witness in the father’s case.

6. The paternal grandmother was wholly supportive of the case advanced by the father, who pressed for the allocation of equal shared parental responsibility for the child between himself and the mother, and orders that the child live with him and spend time with the mother on alternate weekends, for a portion of school holidays, and on special days. During final submissions the father and paternal grandmother proffered written submissions contending for the child to live for equal time in each household, but when quizzed, the father expressed his preference for the orders originally proposed and the arrangement of equal time only as an alternative outcome.

7. Conversely, the mother sought the allocation of parental responsibility for the child solely to herself, an order that the child live with her, and orders providing for the child to spend two hours of time each fortnight with the father supervised at a contact centre.  The mother proposed that the child spend time with the paternal grandparents at the same time, to be achieved by them attending the contact centre with the father.

8. The mother’s position was broadly supported by both the Director-General of the New South Wales Department of Human Services and the Independent Children’s Lawyer. However, in final submissions, the Director-General tendered a fresh Minute of Orders providing for the child to spend supervised time with the father at a contact centre on a monthly rather than fortnightly rotation. The mother then adopted that proposal, but the Independent Children’s Lawyer did not.

9. The pivotal issue in the case, so far as the father and paternal grandparents were concerned, was their allegation that the child was being physically abused and neglected whilst in the care of the mother.  The mother denied those allegations and, supported by the evidence adduced from the expert psychologist appointed as the single expert pursuant to Chapter 15 of the Family Law Rules, conversely alleged that the child was being subjected to emotional abuse by both the father and paternal grandparents. It was contended that the emotional abuse of the child was manifest from the quite extraordinary efforts made by the paternal family to substantiate their allegations of physical abuse against the mother.  Those issues became the primary focus of attention in the hearing.

Documents read in evidence

1. In support of his Further Amended Initiating Application filed on 24 December 2009, the applicant father read in evidence the following documents:

   a)Notice of Child Abuse or Family Violence, filed by the father on 13 October 2008.

   b)Affidavit of the father, filed on 8 February 2010.

   c)Affidavit of the paternal grandfather, Mr Bolton Snr, filed on 8 February 2010.

2. The paternal grandmother supported the orders sought by the father and in her case she relied only upon the affidavit filed by her on 8 February 2010.

3. In support of her Further Amended Response filed on 5 February 2010, the respondent mother read in evidence the following documents:

   a)Affidavit of the mother, filed on 16 February 2010.

   b)Affidavit of her partner, Mr J, filed on 16 February 2010.

4. In support of the Response filed on 23 February 2010, the Director-General of the New South Wales Department of Human Services read in evidence the following documents:

   a)Affidavit of the Departmental Casework Manager, Mr O, filed on 10 February 2010.

   b)Affidavit of the principal of the child’s school, Mr N, filed on 10 February 2010.

5. The Independent Children’s Lawyer adduced evidence from the single expert witness, Ms S, in the form of her affidavit filed on 14 May 2009.  Ms S is a senior clinical psychologist.

6. The Independent Children’s Lawyer also tendered a bundle of documents, with the consent of the parties, containing a selection of the documents produced in response to many subpoenas that had been issued in the proceedings. The bundle was marked Exhibit ICL1.

Background history

1. The applicant father, Mr Bolton, was born in 1966.  At the time of final hearing he was aged 43 years.

2. The respondent mother, Ms Whittaker, was born in 1982.  At the time of final hearing she was aged 27 years.

3. The mother and father formed a relationship and began living together on 2 August 2001.  They were married in 2002 and finally separated on 2 August 2005.[1]

   [1] Mother’s Affidavit, par 11

4. The child was born in March 2004.  He was the only child born to the relationship between the mother and father.  At the time of hearing the child was only several weeks short of attaining six years of age.

5. At the time of the parties’ separation in August 2005 the child was only about 17 months of age.

6. Upon separation the mother departed the former matrimonial home with the child.  There is no dispute that the child has spent most of his time since then in the care of the mother.

7. It was only several months after their separation that the parties were able to reach agreement on parenting orders for the child.  On 13 December 2005, the mother and father obtained orders from the D Local Court, including the following:

   1.      That the child of the marriage, namely [L] born […] March 2004, reside with the Mother.

   2.      That the Father exercise contact with the child of the marriage as follows:

   Until the child commences school

   2.1From Friday, 23 September 2005, at 6:00 pm to Sunday, 25 September 2005, at 6:00 pm, and thereafter each alternate weekend.

   2.2From Wednesday, 28 September 2005, at 6:30 pm to Thursday, 29 September 2005, at 6:30 pm, and thereafter each alternate week.

   2.3From 25 December at 3:00 pm to 27 December at 6:00 pm.

   2.4For three periods of seven consecutive days commencing at 9:00 am and concluding at 6:00 pm conditional upon the Father giving the Mother 28 days notice of such intended contact and each period of seven consecutive days to be not less than 56 days apart.

   2.5Any other times and places as agreed between the parties.

   Upon commencing school

   2.6Each alternate weekend from Friday 6:00 pm to Sunday 6:00 pm.

   2.7For a period of one week during school holidays except the Christmas school holiday period as agreed but failing agreement the first week in even numbered years commencing at 6:00 pm on the day of conclusion of the school term and concluding at 6:00 pm at the mid point, and the second week in odd numbered years commencing 6:00 pm at the mid point and concluding at 6:00 pm on the day immediately prior to the commencement of the new school term.

   2.8From 26 December at 9:00 am and concluding at 6:00 pm on the day being half of the Christmas school vacation period.

   2.9Any other times and places as agreed between the parties.

8. It can be seen from those orders that the parties agreed upon a regime for the child to live predominately with the mother and to spend time with the father, measured at three nights per fortnight up until the child commenced school.

9. Regrettably, the parties were only able to comply with those consent orders for a period of months.

10. In August 2006, the father detained the child following an occasion upon which the child spent time with him pursuant to the existing orders and refused to return the child to the mother.  The mother made an application to the Federal Magistrates Court of Australia for a recovery order, which order was made by Federal Magistrate Lapthorn on 4 September 2006.

11. Further parenting orders were made between the mother and father by the Federal Magistrates Court of Australia on 14 March 2007, regulating some time that would be spent by the child with the father, and making additional provision for the passing of information between the parents of medical details pertaining to the child.

12. Later during 2007, the father again detained the child in his care and refused to return the child to the mother, causing the mother to issue a second application for a recovery order.  A further recovery order was made by Federal Magistrate Baumann in the Federal Magistrates Court of Australia on 19 September 2007.  At that time, the Court made some supplementary orders regulating the behaviour of the parties, and confirmed the preceding orders made on 13 December 2005 and 14 March 2007.

13. On 25 February 2008, the mother and father reached agreement on further parenting orders for the child, which brought the proceedings then pending before the Federal Magistrates Court of Australia to an end.  The consent orders made by the Court on that date included the following:

    1.      The child [L] born […] March 2004 (‘[the child]’) live with the Mother.

    2.      Until [the child] commences school he shall spend time during school terms with the Father for five (5) nights per fortnight commencing at 8:30 am Wednesday, 27 February 2008, to 5:30 pm the following Monday each alternate week.

    3.      Upon [the child] attending school he shall spend time during school terms with the Father for five (5) nights per fortnight commencing on the first Wednesday following [the child] commencing school from conclusion of school Wednesday to the conclusion of school the following Monday.

    4.      Upon the child commencing school [the child] shall spend time with each parent for one half of each school holiday period for the first half of each holiday period in odd years with the Father from 8.30am on the first Saturday following the conclusion of school for the Term to 8.30am on the day closest to the mid-point of the school holiday period and for the second half of all school holiday periods in even numbered years commencing at 8.30am on the day closest to the mid-point and concluding at 5.30pm on the day prior to the resumption of school.

14. It will be observed from those orders that the parties again agreed that the child should live predominately with the mother and spend time with the father.  The regime provided for the child to spend five nights per fortnight with the father and also for part of the school holiday periods once the child commenced school. The child’s time with the father was expanded.

15. Unfortunately, after the lapse of a few further months, the parties again fell into dispute over the child.  The child was due to begin school in the 2009 academic year. The father took steps to enrol the child to attend R Public School without consulting the mother. The mother took exception and had her solicitor correspond with the father about that on 20 August 2008.[2] The mother wished the child to be enrolled at the T Public School.

    [2] Mother’s Affidavit, par 23

1. Very shortly following the sending of that correspondence to the father, the mother was the subject of investigation by the police and officers of the New South Wales Department of Human Services (“the Department”).[3] It was apparent that both the police and officers of the Department were then responding to complaints made about the mother by the father and/or paternal grandparents.

   [3] Mother’s Affidavit, pars 25, 26 and 27

2. It was reported to the mother at around that time that the paternal family were dissatisfied with the parenting orders that had been agreed only months before on 25 February 2008 and intended commencing further litigation.[4]

   [4] Mother’s Affidavit, par 29

3. Only a few weeks later, on 13 October 2008, the father filed an Initiating Application in the Federal Magistrates Court of Australia seeking an order allocating parental responsibility for the child to him solely, and orders that the child live with him and spend supervised time with the mother each fortnight at Relationships Australia.

4. Contemporaneously with the filing of that Application, the father also filed a Form 4 Notice of Child Abuse or Family Violence alleging that the child had been physically assaulted a week before by the mother and/or the mother’s partner.

5. On the day that those documents were filed, the father’s solicitor advised the mother’s solicitor by facsimile transmission that the child would not be returned to the mother that afternoon, as would be required if the existing parenting orders were the subject of compliance.[5]

   [5] Mother’s Affidavit, pars 34 and 35

6. Several days later the mother filed a third application for a recovery order, and that recovery order was made by the Court on 17 October 2008. 

7. On 30 October 2008, the Court appointed an Independent Children’s Lawyer for the child and invited the Director-General of the New South Wales Department of Human Services to intervene in the proceedings.

8. On 14 November 2008, the mother filed a Response seeking dismissal of the father’s Application for amended parenting orders, together with costs.  It was clear that the mother was then prepared to abide by the orders reached consensually between the parties on 25 February 2008.

9. The Director-General accepted the Court’s invitation to intervene in the proceedings by filing a Notice of Intervention on 13 February 2009. Simultaneously, the Director-General sought the appointment of a single expert witness.

10. On 16 February 2009, the Federal Magistrates Court acceded to the Director-General’s request and appointed Ms S as the single expert and transferred the proceedings to this Court.

11. Ms S consulted with the family members during April 2009 and filed her affidavit annexing her report on 14 May 2009.  Ms S’s affidavit was released to the parties several days later on 17 May 2009.

12. As a consequence of the contents of Ms S’s affidavit, the matter came back before the Court on 26 May 2009.  On that occasion interim parenting orders were made by consent in respect of the child in reliance upon the evidence of Ms S.  Those orders included the following:

    1.      That the Orders made in the Federal Magistrates Court on 25 February 2008 are suspended.

    2.      That the mother shall have sole Parental Responsibility for the child,           [L] born […] March 2004 (“the Child”).

    3.      That the Child live with the Mother.

    4.       That the Father spend time with the Child for up to 2 hours each fortnight supervised by Rainbows, Relationships Australia at […] (“the Contact Service”) at times nominated by the Contact Service. The Paternal Grandparents may attend the contact visits at the same time.

13. Those orders dramatically curtailed the time spent by the child with the father and paternal grandparents, and those orders continued to prevail until the final hearing in March 2010.

14. On 11 November 2009 the father filed an Amended Application proposing orders that are quite puzzling. He proposed orders that largely accorded with those proposed by the mother. No issue was taken with the father over the contents of that document during the hearing and, in the circumstances, I impute that the orders set out in that document were a simple error cured by him filing a Further Amended Application on 24 December 2009 which more reliably reflected the position he had consistently adopted concerning the child. Notably, unlike his original Application, the father did not seek to impose any form of supervision upon the time that he proposed should be spent by the child with the mother, despite maintaining his allegations of abuse of the child against her.

15. The final hearing commenced on Monday 8 March 2010 and concluded on Thursday 11 March 2010. Judgment was reserved.

Allegations of Physical Abuse

1. The father and paternal grandmother assert that the child has been inflicted with physical abuse whilst in the care of the mother, which has been sufficiently severe on many occasions to have caused bruising upon various parts of the child’s body. The paternal family are unable to accuse any particular person of that abuse, but they attribute fault for it to the mother since it occurred whilst the child was within her care.

2. From time to time members of the paternal family have noticed bruising on the child’s body.  The paternal grandmother has taken photographs of the bruising on occasions when it was regarded by the paternal family as suspicious.  The purpose of the photographs was to keep a pictorial record of the injuries. Those photographs have been adduced in evidence by the father.[6] The photographs were taken on eight occasions, captioned as “16 December 2005”, “22 September 2006”, “about October 2006”, “3 November 2006”, “14 January 2007”, “17 January 2008”, “about October 2008”, and “December 2008”. The father said that all of the bruises depicted in the photographs had been the subject of examination by a doctor.

   [6] Father’s affidavit, Annexure C

3. The father said in evidence that a routine had developed within the household of the paternal family to undress the child on each occasion that he was delivered to them by the mother so that the child could be physically inspected for bruising or any other sign of injury.  He was then dressed in clothing provided by the paternal family so that, according to the father and paternal grandfather, he could feel more “comfortable and secure”.  The father thought that such a routine would comfort the child in the knowledge that by wearing clothes provided by the paternal family he would not be sent back to the mother. The child was not redressed in the clothing in which he arrived at the paternal family’s home.

4. The members of the paternal family were highly resistant to the idea that the bruising that they had observed on the child’s body might have been accidentally sustained in the course of normal childhood play.  Whilst the father and the paternal grandparents were all able to finally acknowledge that some of the bruising might be explicable in that way, they tenaciously maintained that much of the bruising must have been sustained as a consequence of the deliberate infliction of physical force upon the body of the child by another person.

5. The parties separated on 2 August 2005. There was no dispute about the date of that event. Within days, the paternal family were in contact with agencies concerning the mother’s care of the child.

6. On 4 August 2005 the paternal grandmother telephoned the Department to complain about the weight of the child and her poor relationship with the mother.[7] Although the paternal grandmother denied she did so, I find as a fact that she did, in reliance upon the contemporaneous departmental record.

   [7] Affidavit of Mr O Exhibit MO1 page 2

7. On 5 August 2005 a caseworker from the local office of the Department contacted the family medical practitioner to inquire about the health of the child because “a grandparent complained [to the Department] that he [the child] is not getting proper meals [from the mother]”.[8]

   [8] Exhibit ICL1 page 55

8. The father conceded that he first began taking the child to the doctors to be examined and to have injuries recorded from very soon after his separation from the mother. Thereafter, he said, he took the child to the doctors for that purpose “every visitation”. I suspect that the father’s reference to “every visitation” is merely hyperbole, and infer that the father means that he took the child to the doctors frequently, but not every time he saw the child.

9. The father agreed that he was not taking the child to the doctors for treatment, because no treatment could usefully be afforded for bruising. The whole purpose of those visits was to report and record the bruising so that the doctor would have grounds to report the injuries as evidence of child abuse to the Department of Human Services.

10. The paternal grandmother even said that the child had been taken to the doctor for examination, and that the Department helpline had been called, on occasions when the paternal family knew that the bruises were entirely consistent with ordinary childhood play. She denied that their purpose was to help make a case of child abuse against the mother, but rather as a method to “make the mother communicate with us”. I do not understand the logic of that statement.

11. The child’s general practitioner from the time of his birth was Dr M. He was the family doctor for the paternal family. Following separation, the paternal family continued to consult Dr M about the child’s bruising. The child first saw Dr M for that purpose on 3 June 2006 and saw him many times thereafter for that purpose. The dates and results of those consultations are summarised in a report prepared by the doctor, dated 17 January 2008.[9]

    [9] Exhibit ICL1 pages 10-11

12. The concerns of the paternal family about the child initially came to a head on 26 August 2006. None of the photographs in evidence bear that date, so the bruising investigated at that time is not the subject of photographic record.

13. On that date the child was delivered by the mother to the father for the child to spend time with the father. The paternal family found the child to be bruised and allegedly smelling of alcohol. They arranged for the child to consult with Dr M. The subsequent police report notes that blood was drawn from the child for pathology testing for the presence of alcohol.[10] In the absence of evidence to the contrary I impute that the pathology test was negative. A report on the child’s condition was given by the paternal family to the Department of Human Services, and the family then reported the matter to D Police. The child was then taken to D Hospital for examination. Afterwards, the paternal grandmother telephoned the mother and informed her that the child would not be returned to her on advice of police, and that police would be applying for an ADVO.[11]

    [10] Exhibit ICL1 page 34

    [11] Exhibit ICL1 page 34

14. The police report covers the relevant events of that day and the following day. That report goes on to recite:[12]

    …This is not the case [that police would be applying for an ADVO] and police have been in contact with DOCS

    …DOCS helpline were advised that it was suggested to keep the son home with the father until police spoke to the hospital about the observed injuries and to determine if a case existed for application for an ADVO. The grandmother has taken this as gospel to advise the mother the child will not be returned and is in the view of challenging a Family Law Court decision to keep the child in her custody (sic).

    …[the paternal grandmother] stated “We saw Dr [C] and advised us not to take the child back to the mother under any circumstances. The child was physically abused”.

    [12] Exhibit ICL1 page 34

15. It is clear from the tenor of the police report of the event that the police did not regard the paternal grandmother as relating information to the various agencies clearly or fairly. The police declined to make any application for an ADVO against the mother on behalf of the child. The father admitted that that was because the police had told him that there was no evidence of child abuse. Irrespective, the paternal family detained the child.

16. The notes taken by staff at the D Hospital at the time of examination of the child on 26 August 2006 record:[13]

    …Father is concerned that mother is hitting child – bruises on legs.

    …G-mother had taken pictures of the child’s bruises.

    …Multiple bruises on both legs, near the knees (above and below). Most are starting to resolve

    …2 x bruises on right arm.

    [13] Exhibit ICL1 page 14-16

17. The hospital notes appear to be made by Attending Medical Officer CN – not Dr C. The paternal grandmother was simply mistaken about the name of the doctor consulted at the hospital when she spoke to the police.

18. There is no doubt that the child was bruised on 26 August 2006. There is however no corroborative evidence of any doctor or nurse confirming that the child was physically abused, or advising the paternal family not to return the child to the mother. The paternal grandmother conceded in cross examination that they were not told at the hospital that the child had been abused. She also conceded that they were not advised at the hospital to withhold the child from the mother.

19. The paternal grandmother denied that she told police that the paternal family had been advised that the child had been abused and to detain the child, despite the clarity of the police record of the incident indicating that she did. I prefer the contemporaneous police record for accuracy over the recollections of the paternal grandmother. I conclude that her evidence on that point was untrue.

20. Following his consultation on 26 August 2006, Dr M referred the child to a specialist haematologist, Dr A, to investigate the possibility that the child had a blood disorder that might account for his bruising. The child was subsequently found to have no such disorder.

21. Some days later, on 29 August 2006, the paternal grandmother contacted the Department to advise that she had spoken with a solicitor and that the paternal family intended detaining the child until the Department had completed its investigation.[14] The departmental officer recommended that the paternal family return the child to the mother because the Department intended taking no further action, as there was no evidence that the marks seen on the child’s body were necessarily inflicted by another person.

    [14] Affidavit of Mr O Exhibit MO1 pages 50-51

22. The paternal grandmother was angered by the Department’s attitude and asserted that the doctor had told the paternal family that the child had been hit. That assertion by the paternal grandmother was also untrue. Neither the doctor at the hospital nor Dr M had said to the paternal family that the child had been physically abused following separate examinations on 26 August 2006. The departmental officer confirmed with the paternal grandmother that the Department had not received any reports from any health professionals suggesting that the child had been physically harmed. Had either the doctor at the hospital or Dr M concluded that the child had been physically abused they would have been obliged to notify the Department of their findings. Neither did so.

23. The paternal family continued to detain the child despite notification of the Department’s position. The Court made a recovery order in favour of the mother on 4 September 2006 and the child was returned to her.

24. The paternal grandmother was back in touch with the Department the next day, being 5 September 2006, at which time she again agitated her grievance at the Department’s failure to act on her reports.[15] The paternal grandmother asserted that the child was very sick and in need of urgent medical treatment for a blood disorder. That was untrue. There is no evidence that the child has ever been very sick, and there is evidence that the child’s affliction by a blood disorder was discounted by his medical specialist. Tellingly, the paternal grandmother advised the Department that she had expected the child to be removed from the mother’s care and placed with her and her husband – not the father.

    [15] Affidavit of Mr O Exhibit MO1 page 64

25. The paternal grandmother said in evidence that she could not remember the conversation that took place on 5 September 2006 between herself and the departmental officer, and so I accept the contemporaneous notes of the officer as being accurate in the absence of rebuttal.

26. In a telephone conversation on 6 September 2006 the paternal grandmother was informed by officers of the Department that no further action would be taken by the Department in respect of the child. Specifically, the paternal grandmother was told that the Department had no concerns for the immediate safety of the child, and no concerns for the child remaining in the mother’s care.[16] I accept the accuracy of the Department’s contemporaneous notes about that conversation.

    [16] Affidavit of Mr O Exhibit MO1 pages 75-76

27. On 11 September 2006 the Department wrote to both the father and paternal grandmother, referring to the telephone conversation involving the paternal grandmother some days before, and confirming the Department’s position on the matter.[17] The paternal grandmother’s complaint to the NSW Ombudsman about the allegedly inadequate response of the Department to her notifications was dismissed.[18]

    [17] Affidavit of Mr O Exhibit MO1 pages 77-78

    [18] Affidavit of Mr O Exhibit MO1 page 81

28. In response to the referral to him some weeks before, Dr A reported back to Dr M on 26 October 2006 that:[19]

    …The father and his parents noticed that each time [the child] comes for access visits he has further new bruising…

    …On examination [the child] has normal childhood bruising on his lower limbs, mainly on his right shin, he has one small bruise on his left thigh. They are non-specific bruises…

    …the rest of the examination was unremarkable…

    …I have reiterated to the family that the bruising that I see today is not consistent with non-accidental injuries.

    [19] Exhibit ICL1 page 8-9

29. Although the paternal family may not have actually seen that report at or about the time of its production to the general practitioner, it is plain from the contents of the report that Dr A told the members of the paternal family that he did not support their concern about non-accidental injuries to the child. They must have left his surgery with his opinion perfectly clear. Notwithstanding, the father said in evidence that he did not accept Dr A’s opinion, because he still regarded the child’s injuries as abnormal and not explicable as normal childhood accidental injuries.

30. The paternal family persisted in taking the child to Dr M in respect of bruising. At consultation on 2 December 2006 the doctor thought that a bruise on the child might have been caused by him being pinched, but the hypothesis was not developed beyond a possibility. There is no photograph of any bruising in evidence captioned as being taken in December 2006.

31. On 4 January 2007 the father and paternal grandmother took the child to the Department’s office to again complain about bruising on the child’s body.[20] They had already taken the child to see Dr M that day, and the doctor had written a letter stating that he was uncertain of the cause of the bruising. That letter is not in evidence. The paternal family asserted to the Department that the child had told the doctor that “Mummy did it”, in relation to the bruising, but that is not confirmed by the doctor.

    [20] Affidavit of Mr O Exhibit MO1 page 82

32. There is a photograph in evidence of a bruise on the child, captioned as being noticed by the paternal family on 14 January 2007 (not 4 January 2007), but no other evidence is adduced about that injury being the subject of examination or evaluation by a doctor.

33. During 2007, Dr M saw the child about bruising on 4 January, 9 May, and 16 May. The doctor expresses no view about the cause of the bruising observed by him on those occasions. He simply records what he saw.[21]

    [21] Exhibit ICL1 page 11

34. The doctor concluded his report prepared in January 2008 by observing that he had been very surprised by some of the bruising observed on the child, and indicated that he had wondered whether it was the result of child abuse, but at no point did the doctor conclude that the bruising was non-accidental. The doctor’s deliberations have seemingly never progressed beyond the point of wonderment. That is the highest point to which the medical evidences reaches.

1. The paternal family took photographs of bruising on the child’s body on 17 January 2008. The child saw Dr M on that date, but the notes from that consultation make no mention of any bruising.[22]  

   [22] Exhibit ICL1 pages 2, 51

2. On 1 September 2008, whilst the father was at work, the child was presented by the paternal grandparents to D Police in relation to a small cut upon his left ear. A record of that attendance is in evidence.[23] That record discloses that the child had already been taken to Dr M about that injury some days before on 29 August 2008. Dr M’s notes from that consultation do not vindicate any belief that the injury was caused by physical abuse.[24] There is no photograph of the injury in evidence.

   [23] Exhibit ICL1 page 29

   [24] Exhibit ICL1 pages 3, 51A

3. The child made disclosures, upon his presentation to the police on 1 September 2008, of his physical abuse by the mother and her partner. The police accordingly notified the Department for it to investigate the allegations. The police took no independent action.

4. According to the child, the cause of the small laceration on his ear was as follows:[25]

   …[the mother’s partner] pulled a branch off a tree and hit him across the face with it.

   [25] Exhibit ICL1 page 30

5. At that same time the paternal grandparents made a series of damning allegations about the mother’s care of the child, all of which were based entirely upon comments made to them by the child.[26]

   [26] Exhibit ICL1 page 30

6. On the strength of the grandparents’ reports on 1 September 2008, the police attended the mother’s home two days later. They did so because the paternal grandmother was impatient about the progress of the investigation by the Department into their allegations about the mother. The police found the mother co-operative and responsive, and saw the child in a comfortable bed with appropriate bed linen, in a clean and well furnished bedroom with plenty of toys. They had no fears for the welfare of the child.[27]

   [27] Exhibit ICL1 pages 30-31

7. On 8 September 2008 the paternal grandmother again contacted the Department, asserting that she was doing so with the permission of the father. The paternal grandmother described the mother as a liar and proceeded to make a litany of gratuitous criticisms of her. It was again confirmed to the paternal grandmother that the Department did not believe that the mother posed a risk to the child’s well-being. Rather, she was told that the Department believed that the child was at risk of psychological harm by reason of the conduct of the paternal family, specifically because of their denigration of the mother, their examinations of the child’s body for injuries, and their presentations of the child to doctors and police on an ongoing basis.[28] The paternal grandmother admits that she was told those things during the telephone conversation. She also said that she would never believe that opinion to be correct.

   [28] Affidavit of Mr O Exhibit MO1 pages 112-115

8. It is obvious that the paternal family did not take stock and reflect upon their behaviour. They continued to act exactly as they had before.

9. On 9 September 2008 the father attended D Police Station to complain about the bruising he had noticed on the child the day before.[29] The police made inquiries of the mother but were seemingly satisfied with her responses.

   [29] Exhibit ICL1 pages 36-37

10. On 9 October 2008 the paternal grandparents took the child to see a general practitioner, Dr H, who worked in the same local practice as Dr M. The purpose of the visit was for the doctor to record bruising upon the child’s body and for him to express an opinion that the injuries were non-accidental. There is a photograph in evidence of bruising on the child, captioned “about 10-08”, which I infer is a reference to the bruising being observed in “October 2008” and is hence the injury inspected by Dr H on 9 October 2008.

11. The doctor’s notes record as follows:[30]

    …brought in by grandparents.

    …asked to look at bruises.

    …grandmother wanted this to be classified for child abuse and report to be sent for the solicitor.

    …I am unable to classify this as child abuse.

    …injuries are minor and could be accidental.

    …explained to them regarding physical injuries on which we suspect child abuse, but none of these are present on this patient.

    [30] Exhibit ICL1 pages 3, 51A

12. It could not be clearer that the doctor was declining to provide his support for the beliefs of the paternal family. The doctor told them so directly. Both paternal grandparents admitted in cross examination that the doctor did so.

13. The paternal grandmother took more photographs of bruising on the child’s body in December 2008. The child saw Dr M on 8 December 2008, but his notes from that date make no mention of any bruising.[31] The child was only furnished with a prescription for ventolin, related to a respiratory complaint. There is no evidence that the bruising in December 2008 was the subject of examination or evaluation by any other doctor.

    [31] Exhibit ICL1 pages 4, 52

14. There is no evidence before the Court of any injuries sustained by the child in February 2009. Nevertheless, in February 2009, the father was still instructing the child to tell his school teacher that the mother was hurting him. Notes made by the child’s school teacher on 27 February 2009 record as follows:[32]

    …[the child] did not want Dad to leave. He [the child] said “They were hurting him” and Dad told [the child] to tell the teacher so she would tell the solicitor and it would help Dad in court.

    …the “they” he [the child] was referring to I assume is Mum and partner but could have been students.

    [32] Exhibit ICL1 page 43

15. The teacher realised that the child may not have even been referring to the mother and her partner as the source of his “hurt”, but the father did not. He simply assumed that the child was referring to the mother and her partner and sought the child’s complicity in the litigation – even at a time when the evidence is that the child was not displaying any physical injury.

16. The teacher also realised that the child, even if referring to the mother and her partner, may not have been speaking truthfully. The father had no such realisation. He took what the child said for granted.

17. There is no photographic or medical evidence before the Court of injuries sustained by the child in May 2009. Nevertheless, in May 2009, the paternal grandmother took the child to his school and pointed out bruising on the child’s body at the front counter of the school office. The risk of the child then being made a spectacle is obvious. After that occurred, the child approached his teacher and said:

    …Nanny told me to tell you [the mother’s partner] has been hitting me.

18. Notes of that incident were recorded in the school records pertinent to the child on 14 May 2009.[33] The teacher recorded in the notes that when the child made that report to him or her:

    …[the child] appeared nervous and jumbled his words often.

    [33] Exhibit ICL1 page 45

19. Evidence was given by the principal of T Public School, which school the child has been attending from about the middle of the 2009 academic year. The principal said that neither he nor any of his teachers at the school had seen injuries on the child which were regarded suspiciously as evidence of child abuse.

20. During his cross examination at the final hearing the father gave evidence that he had seen the mother punch the child. He said that he had seen that occur whilst they were still cohabiting and the child was lying in his cot. That revelation was the very first time that allegation had ever been made in evidence. Nor had the allegation been reported to independent authorities. The father conceded that he had not told the police, the Department, the Independent Children’s Lawyer, or the single expert witness.

21. The allegation of the father was most imprecise. He could not remember how old the child was at the time. He initially said 3 months, but then said 6 months, and then said he could not be specific. On the father’s evidence, the incident must have occurred at some point between mid 2004 and August 2005.

22. The father said that he was seated in a chair in the loungeroom at the time and observed the mother in the bedroom down the hallway punch downwards into the cot where the child was lying, crying. He dismissed a suggestion that he might have mistaken for a punch the mother reaching suddenly into the cot. He demonstrated a punching motion.

23. Amazingly, the father admits that he did and said nothing. He did not remonstrate with the mother, who he said was unaware that she had been seen by him. The father says that he surreptitiously looked in on the baby after the mother departed the bedroom. He said that the baby was unmarked. Presumably he was satisfied that the baby was uninjured, because he did not summon medical help. It defies logic that a baby of that age could not be injured in some way by a heavy punch from an adult.

24. More amazingly, the father never once mentioned the incident to the police or the Department, even in the context of this bitterly fought litigation where the overriding issue is his allegation of the mother’s physical abuse of the child. According to the father, that is the one and only time he has been a direct witness to the mother physically abusing the child, yet he said nothing of it and conducted his case entirely by reference to supposition arising out of bruises observed on the child’s body.

25. The father said that he told his parents of the incident around the time that his marriage failed. If so, they have not mentioned the incident to anyone outside their family either. The paternal grandfather said that the father had mentioned to him at about the time of separation that the mother had hit the child, but he did not remember the incident being discussed with the paternal grandmother. All he can remember being told by the father is that the mother hit the child. He could not remember any more detail.

26. The father also adduced evidence of a burn to the buttocks of the child. The injury is depicted in one of the photographs taken by the paternal grandmother, and is captioned as having been seen on 7 August 2008. There is no dispute that the injury was a burn. The mother and her partner, Mr J, said that the child had been burned when his buttocks came into accidental contact with a heater. The child had just emerged from a bath or shower and was being dressed in front of the heater during winter. The photograph was adduced by the father supposedly as evidence of abuse of the child, although he was not asked about it in cross examination. When the paternal grandmother was challenged about the reasonableness of the mother’s explanation she simply retorted that it was unreasonable to dress a young child in front of a heater.

27. For their part, the mother and her partner, Mr J, each denied that they have physically abused the child, or seen the other do so. They say that the child has sustained injuries, such as bruising and that burn, as a consequence of accidents in the normal course of childhood play or activity.

Findings in Respect of Physical Abuse Allegations

1. This Court is frequently confronted in parenting cases with allegations by one party against another that the other has abused the children, either sexually or physically. It is understandably contended in those circumstances that the existence of such past abuse is an impediment to the children living or spending time in the future with the perpetrator of that abuse – because that future contact would expose the children to either the certainty, probability, or potentiality of further abuse.

2. It has been authoritatively determined that such allegations of abuse ought to be critically analysed, but only within the context of the Family Law Act (“the Act”). It is not the function of the Family Court to necessarily adjudicate upon the veracity of the allegations of abuse. The Court should not divert its attention from the task imposed by the Act, which is to reach a parenting outcome on the evidence which is in the best interests of the children. So much is evident from the authoritative judgments of the High Court (see M & M (1988) 166 CLR 69 at 76-77) and the Full Court (see B & B (1993) FLC 92-357 at 79,778).

3. The principles discussed by those authorities are applicable to all allegations of risk of harm, including family violence.  They are not confined to allegations of risk by reason of sexual abuse (see A v A (1998) FLC 92-800 at 84,994 – 84,995).

4. The Full Court has emphasised the distinction between a positive finding of abuse on the one hand, and a finding of unacceptable risk on the other, saying (see WK v SR (1997) FLC 92-787 at 84,694):

   …before trial judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.

5. In W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court considered what is meant by “unacceptable risk”, the possible severance of a meaningful parent/child relationship, and the appropriateness of maintaining that relationship by way of supervision. After reviewing numerous decisions in which the concept of “unacceptable risk” was considered, the Full Court concluded (at 79,910):

   In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities, abuse has occurred.  We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.  The High Court in M & M recognized the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty.

6. In Napier & Hepburn (2006) FLC 93-303 (at 81,114 - 81,115) the Full Court recognised that the “unacceptable risk” test was not a magical incantation, but rather a real benchmark by which a court must evaluate whether or not, and why or why not, the evidence manifests an unacceptable risk of harm to the subject child. That entails critical analysis of the nature and degree of the alleged risk, and whether the risk should be categorised as unacceptably high, even with the imposition of safeguards.

7. If the Court reaches the conclusion that there is no unacceptable risk then the Court must consider the separate issue of the accusing parent’s belief in the occurrence of the events, which will of itself potentially influence the parenting outcome.  In A v A (at 84,996) the process is set out as follows:

   It is only in cases where the trial judge reaches a conclusion that objectively there was no unacceptable risk that the judge would need to turn to the separate question of the wife’s belief in the occurrence of the events in question as a separate matter…

   …if the wife had such a belief it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held…

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

8. Applying those principles to the evidence in this case leads to the following findings:

   a)The mother did not physically abuse the child, such as to cause injury to the child in the nature of the bruising which the paternal family has found concerning.

   b)The mother’s partner, Mr J, did not physically abuse the child, such as to cause injury to the child in the nature of the bruising which the paternal family has found concerning.

   c)Neither the mother nor Mr J are aware of any other person being responsible for physically abusing the child, such as to cause injury to the child in the nature of the bruising which the paternal family has found concerning.

   d)Neither the mother nor Mr J poses an unacceptable risk of inflicting physical abuse upon the child.

9. I accept the evidence of the mother and Mr J that they have not physically abused the child. They were both credible witnesses.

10. I do not accept the evidence of the father that he saw the mother punch the child whilst he was a baby lying in his cot. The allegation is incredible having regard to the circumstances described by the father and his failure to raise the allegation earlier, either with agencies or as evidence in these proceedings.

11. The most likely explanation for the bruising suffered by the child from time to time is that it occurred accidentally during ordinary childhood play and activity, at the homes of both the maternal and paternal families.

12. Although the members of the paternal family were dismissive of the suggestion that the child had sustained injury whilst in their care, concessions to that effect were finally made.  The father admitted that the child had sustained bruising whilst in his care when the child had been playing on a motorcycle.  He also conceded that on another occasion the child had burned his leg when playing on a quad bike.  He also conceded that the child had sustained grazes whilst playing in his care some years before. Although not mentioned in evidence by the father, it was also apparent from entries in the communication books that the child suffered injuries in the form of bruising when at the father’s home on 26 May 2008 and 9 June 2008.  The father wrote notes to the mother in a communication book telling her so.[34] 

    [34] Exhibit ICL2

13. It is understandable how the paternal family may have been curious about the bruising upon the child’s body from time to time, but the manner in which they have attempted to construct a case of child abuse against the mother is not. The paternal family became obsessive about the bruising upon the child’s body. It transpired that the doctors and agencies that became involved in the lives of the mother, child, and paternal family did not support the fervent belief of members of the paternal family that the bruising was the result of deliberately inflicted force. Nevertheless, in the absence of such support, the paternal family continued their attempts to have the bruising accepted as evidence of intentional abuse of the child by the mother or some person within her household.

14. Apart from the bruises observed on the child’s body, the paternal family said that their concerns were based upon statements made to them by the child that he had been physically abused by the mother and Mr J.

15. The father said in cross examination that he believed what the child said to him and the paternal grandparents. He asserted that children, or at least his child, always spoke truthfully. He did not have the insight to reality test the child’s comments.

16. The paternal grandparents were in somewhat of a bind. They each purported at various times in the past to accept what they were told by the child without reservation. His disclosures served to vindicate their complaints about the mother. However, it is either disingenuous or insightless to accept the child as truthful when it suits, and to dismiss the child as untruthful or fanciful at other times when his comments do not suit.

17. The paternal grandfather initially said in evidence that he believed what he was told by the child and did not think that the child would say things that the child thought he might want to hear. Later in his cross examination he conceded that he did not believe everything he was told by the child. As an illustration, even though he reported that the child said to him that he did not love his mother, the paternal grandfather did not believe that to be true. The paternal grandfather was unable to explain why he would dismiss that statement made by the child as untruthful and not others.

1. The paternal grandmother was caught by the same dichotomy. As an example, she gave evidence that the child had told her that the mother puts Christmas and birthday gifts received by him from the paternal family in the bin.[35] When cross examined the paternal grandmother agreed that she did not believe the child when he reported that to her. The paternal grandmother also said that she did not believe the child when he said to her that he did not love his mother.

   [35] Affidavit of paternal grandmother par 19

2. The paternal grandmother alleges that she has told the child that his mother loves him, but she also admitted in cross examination that she does not actually believe that the mother loves the child. In other words, she made a statement of fact to the child which was deliberately false, according to her belief. She therefore lied to the child. By her own admission, not everything said by the paternal grandmother is reliably true. It is difficult then to conceive how the paternal grandmother has trouble accepting the unreliability of the child’s statements to the various adults in his family if she is conscious of her own unreliability.

3. I do not accept as a fact that children always speak truthfully to their parents and grandparents. There is independent evidence in this case that the child does make statements that are intended to please the adult who is listening to him. The child’s teacher at R Public School noted in school records in February 2009 that:[36]

   [the child] easily agrees with anything anyone says. He says what you want to hear, basically.

   [36] Exhibit ICL1 page 43

4. The single expert also reports that the pressure that has been exerted upon the child is so immense that he has felt the need to report negative things about each family to the other.[37]

   [37] Affidavit of single expert page 64

5. I accept that the child told the paternal family and others from time to time that the mother had hit him. I also accept that the child has made converse reports to the mother about the paternal family. For example, the mother reported to police on 17 October 2008 that the child had stated to her that “nanny smacked me”.[38]

   [38] Exhibit ICL1 page 37

6. The child is enmeshed in the conflict that exists between the maternal and paternal families. He loves them both and wishes to demonstrate his loyalty to both. He knows from the constant inspection of his body and his production to doctors and police that the bruising on his body is a source of the conflict between the families. He says what he perceives his audience wishes to hear. I repose no weight in the statements attributed to the child and do not accept those statements as probative evidence of the cause of his injuries.

7. It seems that the father and paternal grandparents cannot accept that the child’s injuries are most probably innocently explicable. They still adhere to the belief that the child has been abused, and still remains susceptible to abuse, in the mother’s household.

8. The paternal grandmother said in cross examination that she still honestly believes that the mother inflicted the injuries upon the child. Even now, the father admits that he continues to check the child for bruising when the child spends supervised time with him at the Contact Centre. He said that he will believe that the child was subjected to physical abuse in the mother’s household despite any advice to the contrary from doctors, and that he would act exactly as he did if he had his time over. He did not believe that his conduct had caused the child to be stressed, despite the contrary opinions expressed by the single expert psychologist. Neither did the paternal grandmother accept the single expert’s assessment of the stress suffered by the child. According to the principles set out within A v A, that is a matter of considerable significance when the child’s best interests are considered.

9. As the Full Court said in A v A (at 84,996 – 94,997), it is an entirely artificial exercise to carry out an analysis of the statutory factors affecting a child’s best interests in isolation from the conclusions reached about the existence of an unacceptable risk of abuse to the child. To do so would sideline the major factor in the case. I will therefore bear in mind the findings already reached when reviewing the criteria under s 60CC of the Act.

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).

5. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Best Interests of the child – primary considerations

Section 60CC(2)(a)

1. The single expert reported that the child appears to have strong attachments to both parents and to his paternal grandparents, although he appears primarily attached to the mother.[39]

   [39]Affidavit of the single expert, page 65

2. The mother openly concedes that the child has a meaningful relationship with the father and paternal grandparents.

3. The opinion of the paternal family members about the nature of the relationship between the child and the mother is less easily discerned.

4. The single expert reported that the paternal grandmother maintained that the child did not love his mother.[40] When cross-examined, the paternal grandmother disavowed that statement and said that the single expert had misunderstood her answer.  The single expert was also cross-examined about that issue and she maintained that the entry in her report was correct.  She quoted in her report both her question and the paternal grandmother’s answer to demonstrate that she was reporting their conversation verbatim. Irrespective, the paternal grandmother confirmed in evidence that she accepts that the child loves his mother.

   [40]Affidavit of the single expert, page 50

5. The single expert also reports that she asked the paternal grandmother whether she thought that the mother loved the child, in answer to which the paternal grandmother said that she did not think so.[41] The paternal grandmother endorsed that evidence when cross-examined.

   [41]Affidavit of the single expert, page 50

6. The father and paternal grandfather did not express an opinion during the course of the hearing about the nature of the relationship between the child and the mother.

7. I accept the evidence of the single expert that the child has a meaningful relationship with the mother, which is beneficial to him. The quality of that relationship needs to be preserved.

8. The meaningful relationship enjoyed by the child with members of the paternal family also needs to be preserved, subject to appropriate safeguards being introduced to impede the prospect of the child suffering psychological harm as a consequence of continuing exposure to their destructive conduct. Although there is benefit to the child in the maintenance of his relationships with the father and paternal grandparents, that benefit needs to be balanced with the harm he suffers by reason of their behaviour.

Section 60CC(2)(b)

1. This provision of the Act concerns itself with protection of the child from harm resulting from subjection or exposure to “abuse”, “neglect”, or “family violence”.

2. The terms “abuse” and “family violence” are defined in the Act (s 4). Both terms involve an element of physical force, although “family violence” also contemplates intimidation as a sufficient manifestation of that form of conduct.

3. The single expert has expressed an opinion that the members of the paternal family have conducted themselves in ways which have subjected and exposed the child to psychological harm. That may be so, but it is not the type of harm envisaged by s 60CC(2)(b) of the Act, because it has not been alleged that such harm has resulted from the type of “abuse” covered by that provision. Psychological harm caused by other forms of conduct, not amounting to “abuse”, is considered under s 60CC(3) of the Act.

4. No issue has been raised that the child is at unacceptable risk of subjection or exposure to physical abuse or neglect in the household of the paternal family.

5. Evidence was however adduced about a level of tension that exists between the father and paternal grandparents, and more particularly the paternal grandfather. The uncontested evidence is that the father binge drinks alcohol sporadically, with which the paternal grandparents do not agree. It is the source of aggravation between them. The father has a tendency to aggression in such circumstances. An incident occurred at the paternal grandparents’ home in 2007 that was sufficiently hostile for the paternal grandparents to feel the need to summon the police. The father was violent and argumentative. He punched inanimate objects in anger. The paternal grandfather admitted that he was fearful of the father on that occasion.

6. That evidence proves that the father has perpetrated “family violence” within the meaning of that term found in the Act. That is because his behaviour, at least on one occasion, caused the paternal grandfather to be reasonably fearful or apprehensive about his safety. However, on reflection, I do not regard that evidence as proving that the child is at risk of physical or psychological harm from exposure to such family violence. The father does not consume alcohol when the child spends time with him, and there is no evidence of family violence occurring between members of the paternal family in the presence of the child.

7. The conclusion has already been reached that the child is not at unacceptable risk of subjection or exposure to physical abuse in the mother’s household.

8. Apart from the allegations of physical abuse, it was alleged by members of the paternal family that they had seen the child with flea bites. It was a significant enough issue for the paternal grandparents to raise with the single expert.[42] Although they did not expressly say so, the clear implication was that they had concluded that the child was being neglected whilst in the mother’s care. According to the labelled photographs taken of the child by the paternal grandmother, insect bites were noticed on the skin of the child on one occasion, being 18 January 2007.  Even at its highest, I do not regard the bites depicted in that photograph to prove “neglect” within the mother’s care – much less that the child has suffered physical or psychological harm as a consequence of any such neglect.

   [42]Affidavit of the single expert, page 44

9. The members of the paternal family did not seem to appreciate the paradox in their expressed concern about insect bites. On the day that the child was delivered by the father to the single expert for consultation, the child was observed to have a large swollen bite mark on his arm which the child explained was caused by the bite of a March Fly at his father’s house.[43] I conclude that the child has been bitten by insects on occasions in both the maternal and paternal households. I do not regard that fact as having any influence upon the outcome of these proceedings.

   [43]Affidavit of the single expert, page 19

10. For those reasons, there is no evidence of any need for the Court to take measures to protect the child from physical or psychological harm by reason of subjection or exposure to “abuse”, “neglect”, or “family violence” in the care of either the mother or the father.

Best interests of the child – additional considerations

Section 60CC(3)(a)

1. When interviewed by the single expert the child was aware that each parent wanted him to live with them.  When asked what he thought about that, the child said that he wanted to live with the paternal grandparents.[44]

   [44] Affidavit of the single expert, page 21

2. I attribute no weight to the view expressed by the child for two reasons.

3. Firstly, the child is barely six years of age.  He does not have the emotional maturity to express a view which should influence the outcome of parenting orders. He does not understand the meaning and duration of his expression of opinion.

4. Secondly, the view expressed by the child to the single expert was induced by the paternal grandmother. The child disclosed to the single expert that the paternal grandmother had told him to tell the single expert that he wanted to live with the paternal grandparents and father.[45] The view he expressed was therefore not necessarily authentic.

   [45] Affidavit of the single expert, page 21

Section 60CC(3)(b)

1. As has already been mentioned, the child enjoys a meaningful relationship with all of the adults in his life.

Section 60CC(3)(c)

1. In general terms, the evidence discloses that the mother has a willingness and ability to facilitate and encourage a close and continuing relationship between the child and the father. 

2. The mother disclosed to the single expert that she would agree to the child living with the paternal family if that was regarded as the best outcome for the child.[46]  The mother was emotional when making that concession to the single expert, and when asked about it in evidence, the single expert expressed the opinion that that statement to her by the mother was really just an expression by the mother of her wish to do anything to relieve the pressure upon the child.

   [46] Affidavit of the single expert, page 11

3. That seems a logical opinion, because the mother later said to the single expert in their discussion that if the conflict could be resolved then she would be happy for the child to spend each alternate weekend with the paternal family.[47] Such a proposal was much more consistent with the mother’s position throughout the litigation than her initial statement about relinquishing the child to the paternal family. It was only after publication of the single expert’s report that the mother acceded to the view that the time spent by the child with the father should be supervised, in accordance with the opinions expressed by the single expert.

   [47] Affidavit of the single expert, page 12

4. The mother was well aware that the child enjoyed himself when spending time at the paternal family’s home.[48] Her concern about the child spending unsupervised time with the paternal family was that there would then be no filter for the conflict between the two families, so that the child would continue to be exposed to the pressure of pleasing each family.

   [48] Affidavit of the single expert, page 7

5. Over the life of the litigation, the mother has adopted a relatively conciliatory attitude towards the time spent by the child with the father. Despite the fact that she was compelled to seek and obtain three separate recovery orders against the father, she was still prepared to negotiate interim parenting orders which permitted the child to spend substantial amounts of time with the father, at least until the single expert’s report was released and the last series of interim parenting orders were made in May 2009. The paternal grandmother was prepared to admit that the mother had encouraged the relationship between the child and the father by her agreement to those preceding interim orders.

6. A simple example serves to highlight the mother’s commitment to the retention of a positive relationship between the child and the paternal family. The paternal grandfather gave evidence of an incident at the local shopping centre.[49] He saw the child with the mother at the shopping centre. He went up to the child. He observed that the child was “frightened to speak till his mother gave him permission to speak to his Pop”. He cuddled the child.

   [49] Affidavit of paternal grandfather par 9

7. The paternal grandfather was asked questions about that incident. His answers revealed that the mother actually encouraged the child to speak and interact with the paternal grandfather. Although the paternal grandfather’s affidavit implied considerable reservation on the part of the mother, that was not the case. He agreed that the mother was deserving of credit, not criticism, for the way in which she acted on that occasion. It should be noted that she acted so sensibly despite the manner in which she had been treated by the paternal family. The single expert considers that the mother has been quite resilient to the disparagement by the paternal family, which has been humiliating for her.[50] I accept that evidence as correct.

   [50] Affidavit of single expert page 63

8. There were however aspects to the evidence which raised mild concern about the mother’s willingness to continue promoting the relationship between the child and the father.

9. On the mother’s Facebook internet site she refers to the child by the surname “Whittaker” instead of the surname “Bolton”.  The child’s birth was registered in the name of “Bolton” and he has always been known by that surname.  He has been enrolled at both preschool and school under the surname “Bolton”. In relatively recent times, the mother has abandoned use of the father’s surname for herself and reverted to her maiden surname “Whittaker”. The paternal family is understandably concerned that the mother entertains the same intention for the child, which is not an unreasonable inference arising from the contents of the mother’s Facebook site.  The mother gave evidence that she was alive to that concern of the paternal family and would consent to an order restraining her from changing the child’s surname.

10. The evidence also discloses that the child refers to the mother’s partner, Mr J, as “Dad”, and that he even occasionally refers to the father by his first name.[51] When the child was interviewed by the single expert he referred to Mr J as “Dad”.[52]  When the single expert later asked the child about his father, the child sought clarification as to which father the single expert was referring.[53] Such circumstances are suggestive of the mother attempting to supplant her partner for the father in the paternal role for the child.

    [51] Affidavit of the single expert, pages 14 and 15

    [52] Affidavit of the single expert, page 17

    [53] Affidavit of the single expert, page 20

1. The paternal family also continue to make allegations about the child, which are not only uncorroborated, but are actually contradicted by independent evidence.

2. The paternal grandmother[82] and paternal grandfather[83] gave evidence of an incident at Relationships Australia on 17 January 2010. They each allege that the child was “very distressed” about a report made to them by the child regarding his sleeping arrangements in the mother’s home. They each alleged that a staff member at Relationships Australia named B made notes of the incident.

   [82] Affidavit of paternal grandmother par 18

   [83] Affidavit of paternal grandfather par 17

3. The notes of the staff from Relationships Australia made that day are in evidence.[84] They do not corroborate the evidence of the paternal grandparents. Quite the contrary. Far from being “distressed”, or even “very distressed”, the child is described in the notes as arriving “happy and physically excited” and departing “easily and happily”. That was the theme of the entire visit.

   [84] Exhibit M1

4. When the paternal grandmother was cross examined she conceded that she had had the opportunity to read those notes. She was invited to comment upon the apparent disparity between her evidence and the notes. She said that the child was happy and cheerful, but not as happy and cheerful as normal, and so that was why she regarded the child as being “distressed”. She conceded that it was incorrect for her to have described the child as “very distressed”. The paternal family continue to either perceive or invent drama that does not exist.

5. An issue arose about the mother’s compliance with orders made on 26 May 2009[85] and 30 June 2009[86] requiring her to submit the child to medical consultations. The child has not yet attended any of those consultations. The mother explained herself in her affidavit[87] and in oral evidence. She made an appointment to see a general practitioner shortly following the orders made on 26 May 2009. She obtained a referral to a paediatrician. The appointment was scheduled in October 2009. When she attended that appointment the paediatrician realised that the consultation could involve her in litigation and the paediatrician declined to see the child. The mother then had to return to the GP to obtain another referral to an alternate paediatrician. That was done and a new appointment has been made for 26 March 2010. The mother has been informed by her GP that the child cannot be referred to a child psychiatrist until the child has been consulted by a paediatrician. The delays have therefore been due to the waiting lists of the paediatricians and factors outside the mother’s control, not to her delay or ignorance of the Court orders. I am satisfied that the mother demonstrates an appropriate attitude towards the child and the responsibilities of parenthood.

   [85] Order 10

   [86] Orders 1-3

   [87] Mother’s affidavit par 53

Section 60CC(3)(j)

1. There was little evidence of violence adduced in the proceedings.

2. On 6 September 2007 there was an unpleasant incident at a changeover for the child, which was witnessed by the child. He was the focal point of a physical altercation between the mother and paternal grandmother.

3. The paternal grandmother reported the incident to police, and a record was made of the complaint,[88] but no criminal charge was brought and no application for an AVO was made by police. The report notes:

   …discussion began when she [paternal grandmother] confronted [the mother] about not attending a custody handover the previous Thursday.

   …[the paternal grandmother] was holding the child in front of her with his arms around her neck. [The mother] attempted to take the child. [The paternal grandmother] stating she should let him calm down before taking him.

   …[the paternal grandmother] telling [the mother] that she was not having the child tonight.

   [88] Exhibit ICL1 page 31

4. The paternal grandmother gave her version of that event in evidence,[89] and the mother gave her version of the incident to the single expert.[90] Despite the disparity in their respective versions, it is uncontested that the paternal grandmother was holding the child, who was distressed, and that the mother departed the scene without the child, leaving the child in the possession of the paternal grandmother.

   [89] Affidavit of paternal grandmother pars 12-16

   [90] Affidavit of single expert, page 6

5. The whole point of the changeover was for the mother to recover the child from the paternal family. Even though I accept that the mother struck the paternal grandmother across the face at that time, it is entirely unclear why the paternal grandmother thought that she could legitimately withhold the child from the mother in obvious breach of existing interim orders. The distress of the child would not be a reason, nor would the fact that the mother assaulted the paternal grandmother. The simple and obvious solution was for the paternal grandmother to let the child depart with the mother to avoid a scene.

6. The paternal grandmother’s displeasure arose out of her being told by the mother that she had forgotten to collect the child from the paternal family some days before. The mother admits that she told the paternal grandmother that she had forgotten, even though she had not forgotten at all. She told the paternal grandmother that in a misguided attempt to avoid an argument. It seems that the mother was due to collect the child from the paternal family some days before, but did not do so. I still do not understand her reason for not doing so. In all probability, the mother is deserving of criticism for her behaviour in unilaterally deciding not to collect the child from the paternal family when she was due to do so without informing the paternal family of her decision. However, the single expert said that such an incident should be regarded as an aberration for the mother which is quite inconsistent with her usual parenting attitude and capacity. I accept that evidence.

7. Some time was also spent examining the circumstances of the aggressive incident between the father and paternal grandparents in 2007, which has already been addressed in these reasons.

8. I am not satisfied that the evidence of violence adduced in the proceedings warrants any particular order being made by the Court.

Section 60CC(3)(k)

1. According to the evidence, there is no family violence order in existence against or in favour of the child or any adult in his life.

Section 60CC(3)(l)

1. The orders made largely reflect the interim parenting regime, which has now been in place since May 2009. The father and paternal grandmother are dissatisfied with that regime, and so they will also be dissatisfied with the orders now made. The orders are at considerable variance with those proposed by them.

2. On the other hand, the orders are largely consistent with the proposals of the mother, the Director-General, and the Independent Children’s Lawyer. The orders are also reflective of the evidence given by the single expert.

3. The evidence demonstrates that the child has been much improved since the interim regime was introduced in May 2009.

4. The child’s attendance at school is very good.[91] He is well presented and well nourished.[92] He presents at school as happy and unstressed. He is well behaved and interacts well with teachers and students.[93]

   [91] Affidavit of Mr N, par 8

   [92] Affidavit of Mr N, par 9

   [93] Affidavit of Mr N, pars 11-13

5. Although the child is still making slow academic progress,[94] he has been assessed for more intensive academic intervention.[95] The school principal gave evidence that he participated in a “reader recovery” program. The mother is following up with the revised learning strategies for the child at home.[96]

   [94] Affidavit of Mr N, par 17

   [95] Affidavit of Mr N, pars 18-19

   [96] Affidavit of Mr N, par 20

6. The school principal gave evidence that the child has also participated in a speech pathology program conducted at the school. Reports on his progress dated 16 March 2009 and 3 December 2009 are in evidence.[97] Although he does not now participate, he will do so again if his progress is regarded as unsatisfactory.

   [97] Exhibits DHS1 and DHS2

7. I conclude that, despite the understandable disappointment of the father and paternal grandmother, the orders made are those that will least likely lead to the institution of further proceedings in relation to the child in the near future.

8. For reasons later explained, an order is made pursuant to s 64D of the Act. If circumstances arise in the future concerning the child genuinely warranting reconsideration of the parenting orders then further litigation is assured because of the existence of such order. The parties will not be at liberty to reach private agreement varying the parenting orders.

Section 60CC(3)(m)

1. The paternal grandmother has played a pivotal role in the lives of the child and the parties, and also in this litigation. She communicated with the mother in the communication book used for the child, she prepared all of the affidavit material for use in the father’s case, she prepared the Case Outline document for the father, and she prepared the final written submissions for both the father and herself. The paternal grandmother’s involvement in the litigation even extended to the point of her including material in the father’s affidavit that the father did not wish included. That material concerned information from the Facebook internet site of the mother’s partner. The father said that the paternal grandmother insisted on inclusion of that material despite his request to the contrary. The paternal grandmother finally admitted that to be correct in cross examination, after initially denying it. She could not explain her initial denial and was embarrassed by the inconsistency in her evidence. As a Justice of the Peace, the paternal grandmother should have known that the deponent of an affidavit must willingly adopt the entirety of the contents of an affidavit as his or her own evidence. The inability of the father to resist the paternal grandmother’s control over his own case is indicative of the broader control that the paternal grandmother exerts in his life, and also the life of the child.

2. In cross examination the paternal grandmother agreed that she had held the view for some time that the child would be better off living with herself and her husband rather than with either the mother or the father. Even though the paternal grandmother was supportive of the father’s case, for all intents and purposes she was really conducting a case for the child to live predominantly in her household, in expectation that the father would remain a member of her household. The evidence of the father, however, was that he would not remain living in the home of the paternal grandparents.

3. Although he had never mentioned it before at any point during the proceedings, during his own re-examination the father divulged that he had invited an unidentified woman and her 6 month old baby to form some kind of relationship with him in a new household. He did not actually describe the proposed relationship as a “marriage” or even a “de facto relationship”. It was most curious, because he explained that he had known the person concerned for only four months and that they had not yet even dated. He said that he had made inquiries about that person and ascertained that she was a suitable person for the arrangement he contemplated. The father said that he had asked the woman to “come in as my partner after the case” and that she was “out there waiting for me to start a new life when this is all over”. The paternal grandmother knew the person to whom the father was referring, but had never met her. The paternal grandfather said that the father had told him something about his future plans, but that he had taken no notice.

4. The arrangement was mentioned by the father both in his evidence and during his final submissions. There is little doubt that he is serious about constituting a new household with the person to whom he referred, and that he intends doing so relatively soon after the conclusion of this litigation.

5. Both the father and paternal grandmother seemed not to appreciate the significance of that evidence to the parenting orders that would be made for the child. The father proposed that the child should live with him in a household with another unidentified adult and baby, with no evidence at all that the child has even been introduced to that adult and baby. The paternal grandmother proposed that the child live notionally with the father within her own household, when the evidence is that the father will not be a member of her household for very much longer.

6. The father was invited to consider whether he wanted to belatedly make application to call his intended partner as a witness in the case. He declined to do so. The absence of such evidence severely impairs the Court’s ability to assess the suitability of the father’s household as a place of principal residence for the child, which is the father’s residential proposal for the child.

Parental responsibility

1. The presumption of the allocation of equal shared parental responsibility is rebutted pursuant to s 61DA(4) of the Act because the best interests of the child mandate a different allocation of parental responsibility. That was the submission of the mother, the Director-General, and the Independent Children’s Lawyer, which I accept.

2. I am satisfied that allocation of equal shared parental responsibility would result in a perpetuation of the conflict that has continued to blight the communication between the mother and members of the paternal family for the entire time since separation occurred.

3. Previous attempts to improve the level of communication through the use of a communication book were an abject failure. Several extracts from the communication book were tendered in evidence.[98] Some of the comments extracted within those entries, predominantly those written by the father and paternal grandmother to the mother, are intemperate and inflammatory.

   [98] Exhibit ICL2

4. Since use of the communication book was abandoned there has been no improvement. There is a complete absence of communication, for which the mother blames the paternal family, and the paternal family blames the mother.

5. Having regard to the fact that the parties are unable to communicate at all, and that malaise has existed for so many years, I am persuaded that there is no likelihood of material improvement in the near future.

6. The evidence already adverted to in these reasons discloses that the paternal family have, from time to time, taken steps to marginalise the mother in respect of decisions made about important aspects of the child’s life, including decisions about his medical treatment and the school he attends.

7. I accept the submission that sole parental responsibility for the child should be allocated to the mother. The father conceded the obvious fact that the mother has been the primary carer for the child since the time of separation. I am satisfied, despite the protestations of the paternal family, that she has satisfactorily attended to the major long term issues in the life of the child so far confronted, such as the proper promotion of his education and participation in speech pathology. I consider that she will probably continue to do so.

Living, Spending Time and Communication Arrangements

1. Since parental responsibility is not allocated on an equal shared basis between the parties, the Act does not demand that the Court consider the alternatives of the child living for equal time in each household, or spending substantial and significant time in the non-residential household. Either of those outcomes remains possible, depending upon assessment of the evidence and conclusions about the outcome that meets the child’s best interests.

2. Overall, the evidence leads inexorably to a conclusion that the child should live with the mother.

3. The evidence also justifies a conclusion that the time spent by the child with the father should be the subject of supervision on an indefinite basis. The emotional health of the child is imperilled if he remains exposed to the conflict generated by the paternal family members. The evidence of the single expert was that the child is extremely stressed, and attributed the cause of that stress mainly to the paternal family. The single expert thought that the child had already suffered significant emotional harm. If the stress continues he is likely to develop serious mental health problems which may not be easy to reverse.[99] I accept her evidence.

   [99] Affidavit of single expert, page 57

4. Given that the single expert regards the paternal family as improbably able to mend their ways, the only way that the stress upon the child can be ameliorated is by filtering the interaction between the child and the paternal family with the imposition of an experienced supervisor. That was the recommendation of the single expert, assuming that the Court concluded that the paternal family would maintain their current rigid views about the child and mother.[100] That is the conclusion of the Court. There is an unacceptable risk of continuing harm to the child without the imposition of supervision.

   [100] Affidavit of single expert, page 67

5. The single expert indicated that the threat of losing meaningful contact with a child is a good motivator for a change of pathological attitudes in family conflicts.[101] It has not been so in this case. The single expert’s report was released to the parties in May 2009, being some 10 months ago. There is no evidence to demonstrate that the members of the paternal family have changed their attitudes since then. They have read and understood the single expert’s report, they have endured the interim parenting orders since May 2009 allowing the child only supervised time with them, they have filed their affidavit evidence which is highly critical of the mother, and they continued to give oral evidence during the hearing confirming the rigidity of their attitudes.

   [101] Affidavit of single expert, page 68

6. In those circumstances, there is no evidential basis for adoption of the alternate parenting recommendation made by the single expert.[102]

   [102] Affidavit of single expert, pages 68-69

7. The imposition of long-term or indefinite supervision of time spent by a child with a parent is generally regarded as undesirable (see Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40-41]), but it still remains an option for final parenting orders (see Re C & J (1996) 20 Fam LR 930 at 948-949, 959-960). Although indefinite supervision is undesirable, it is still a better outcome than the option of last resort, which is no interaction between the child and parent at all (see W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at [112-115]; Re C & J at 960). It is open to the court to impose a finite period on the supervision, followed by a review (see W v W (Abuse allegations: unacceptable risk) at [164]). However, I am not satisfied that that is the appropriate course to adopt in this case. The attitudes of the paternal family are too rigid and the evidence of the single expert is so clear. Although the order for supervision is intended to be permanent, that is not to say that it is immutable. The principles developed in Rice v Asplund (1979) FLC 90-725 still apply.

8. Although there is no evidence of it before the Court, questions posed by the Director-General to the single expert suggested that supervision by Relationships Australia of the time spent by the child with the father was not an indefinite arrangement. It was suggested that the supervisory arrangement might terminate after 12 months. On the state of the evidence, the Court cannot find that such a termination is a certainty, or even a probability. However, because it is a possibility, the orders must contemplate supervisory alternatives so that the child is able to continue spending time with the father.

9. The single expert was adamant that the supervisor cannot be a member of the paternal family. Because of perceived family loyalty, such a person would be unable to resist the combined will of the father and paternal grandparents.

1. The single expert was equally adamant that the supervisor could not be a member of the maternal family. The conflict is too severe and supervision by a maternal family member would be provocative to the father and paternal grandparents.

2. The single expert considered that only a skilled supervisor would be up to the task. The orders therefore make provision for use of alternative supervisors proposed by the Director-General and single expert, all of whom are familiar to the Court as experienced supervisors.

3. The next issue to be addressed is the frequency of the time spent by the child with the father. Since the orders made in May 2009 the frequency has been fortnightly. The Independent Children’s Lawyer recommends maintenance of that regime. The Director-General however suggests that the frequency should be wound back to monthly. The mother supported the submission of the Director-General.

4. The single expert said that the child has a strong attachment to the father and paternal grandparents and that he enjoys the time he spends with them. It is necessary, or at least highly desirable, that he retain relatively frequent contact with them. The single expert said in cross examination that a monthly cycle was sufficient for the child to sustain his relationship with the father and paternal family. He is now at an age and maturity where the frequency of visits does not need to be as high in order to remember his experiences of them and retain his attachment to them.

5. The mother said in evidence that the current fortnightly cycle, which has been in place for many months, is working. She had not contemplated any different arrangement before adopting the proposal of the Director-General.

6. Whilst a fortnightly cycle has been satisfactory over a period of months, there must be a reservation about whether such a regime could be sustained over many years to come. A fortnightly commitment to time with the father that must be supervised would be an onerous one over future years as the child matures. I am satisfied that the child should spend supervised time with the father, but not that it should be pursuant to a fortnightly cycle over an indefinite period.

7. I am persuaded that the frequency of interaction between the child and father should be abated to some degree. I do not accept that it should be halved, by moving from a fortnightly to a monthly cycle. The only reasonable alternative therefore is interaction once every three weeks.

8. No specific order has been made regarding time that may be spent by the child with the paternal grandparents. That is not intended to mean that the child should spend no time with the paternal grandparents. Neither the father nor the paternal grandmother sought any order about the time to be spent by the child specifically with the paternal grandmother or paternal grandparents.

9. It has always been understood that the child may spend time with the paternal grandparents at the times he spends time with the father, under the same conditions as the time spent with the father. The mother does not object to that. Whether the paternal grandparents participate in those visits between the child and the father is a matter between the father and paternal grandparents. Having regard to the manner in which the father and paternal grandmother conducted their cases, it is appropriate that the Court leaves the participation of the paternal grandparents in those visits as a private matter between the father and the paternal grandparents.

10. As for communication between the child and father, the single expert is steadfastly against telephone communication, because she did not consider that the conversation could be effectively monitored. In any event, it would be counter-productive for the mother to attempt to monitor the child’s conversation with the father.

11. Communication between the child and the paternal family in written form would be acceptable. That would permit the passing of letters, cards, and gifts. The mother was unaware whether the father is connected to the internet and he did not give evidence that he was. There is no reason why internet communication between the child and father could not occur. The single expert considered that written communication was acceptable because it was capable of being discreetly vetted by the mother.

Ancillary Orders

1. The orders finally proposed by the Director-General were reduced to a minute, tendered as an exhibit.[103] The mother adopted those orders in all respects.

   [103] Exhibit DHS4

2. The orders finally proposed by the Independent Children’s Lawyer were also reduced to a minute and tendered as an exhibit.[104] There were few differences between the orders proposed by the Director-General and those proposed by the Independent Children’s Lawyer.

   [104] Exhibit ICL3

3. The two principal points of difference were the frequency of the visits by the child to spend time with the father, and the imposition of an order pursuant to s 64D of the Act to the effect that the Court’s orders could not be varied by a parenting plan.

4. As for the time to be spent by the child with the father, reasons have already been given for why that should occur with a frequency of three-week intervals.

5. With respect to the order proposed under s 64D of the Act, although the Independent Children’s Lawyer did not ultimately consent to the order, he did not wish to be heard against it. The single expert supported the imposition of such an order when she was cross examined. I am satisfied that such an order is warranted in this case because the circumstances are exceptional – the pre-condition to such an order, required by s 64D(2) of the Act.

6. There is persuasive evidence that the mother has succumbed to pressure exerted by the paternal family in the past to agree to parenting orders favouring the father.

7. On 13 December 2005 the mother agreed to final parenting orders requiring the child to spend time with the father on alternate weekends, overnight mid-week in alternating weeks, special days, and later during school holidays. The mother said that, despite her reservations about the child’s young age, she offered her consent to those orders to avoid conflict with the paternal family.

8. Despite having to successfully prosecute three separate applications for recovery orders over the next few years, the mother agreed to further interim parenting orders which were favourable to the father. On 25 February 2008 the mother agreed to orders providing for the child to spend five nights per fortnight with the father, and also time during school holidays once the child started school. The mother said that she agreed to the enlargement of time spent by the child with the father to try and stop the conflict that existed between herself and the paternal family.

9. The mother was aware of the nature of the s 64D order sought by the Director-General. She thought that she would be subjected to continuing pressure from the paternal family unless such an order was in place. Her apprehension, which appeared genuine, clothed the Director-General’s submission with pragmatism. The Director-General’s concern was no longer merely hypothetical.

10. The tenor of the Director-General’s submission was that immense pressure was exerted by the paternal family on both the child and the mother. I accept that submission to be correct. The mother is still a relatively young woman. She is considerably younger than the father. The father has the weight of the paternal grandparents’ unqualified support behind him. I am persuaded that the Court should properly act as a bulwark against the exertion of further pressure upon the mother to privately revise with the paternal family the parenting orders considered to be in the best interests of the child on the available evidence.

11. Even though she did not concede that she had done so in the past, the mother agreed to be bound by an order restraining her from physically chastising the child. She has already agreed to such an order in the past.[105] That should comfort the paternal family to some degree.

    [105] Order 2 made on 17 October 2008

12. The mother also agreed to an order restraining her from denigrating the paternal family. The paternal family members were not asked directly about their consent to a reciprocal order, but they could hardly be reasonably heard to argue against it.

13. These reasons have already addressed the orders pertaining to the child’s surname and the way in which the child refers to the father and the mother’s partner.

14. The single expert gave evidence that the paternal family should remain bound by an injunction restraining them from involvement in school activities where the child would be present. She thought that the child would be stressed by the interaction between the mother and paternal family. The father was previously bound by a similar order,[106] and the evidence justifies its continuance against both him and the paternal grandmother, who is now a party to the proceedings.

    [106] Order 8 made on 26 May 2009

15. It seems as though the father and paternal grandparents have been confused by the meaning of that order in the past. They have another grandchild attending the same school as the child in these proceedings. They were under the impression that the past injunction against the father precluded the members of the paternal family from attending that school for any purpose. That is not the case. The injunctions now made preclude the father and paternal grandmother from attending school functions attended by the child, and from communicating with the child at the school. They are not precluded from attending the school for unrelated purposes. The father and paternal grandmother are also required to use their best endeavours to have the paternal grandfather comply with the same restraint. He cannot be directly restrained because he is not a party to the proceedings.

16. It is appropriate in those circumstances for the mother to authorise the principal of the child’s school to furnish the father with school reports and school photographs of the child so that the paternal family remain in touch with his academic progress.

17. The single expert observes that the child is in need of medical intervention for his speech difficulties and for psychiatric assessment.[107] These reasons have already addressed the mother’s explanation for why the child has not yet consulted a paediatrician or child psychiatrist. Orders are made to ensure that the child consults with medical professionals without further delay.

    [107] Affidavit of single expert pages 64-65

18. For those reasons, I am satisfied that the orders made reflect the child’s best interests.

I certify that the preceding two hundred and ninety eight (298) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date: 20 April 2010