BOSCO & SULLIVAN

FAMILY COURT OF AUSTRALIA

BOSCO & SULLIVAN

[2015] FamCA 962

FAMILY LAW – CHILDREN – final orders – where the father seeks equal shared parental responsibility and gradually increased time with the child initially supervised – where the mother seeks sole parental responsibility and that the father be restrained from contacting the child – where consideration is given to Part VII of the Family Law Act 1975 (Cth) in particular s 60CC – where the mother alleges inappropriate behaviour by the father toward the child as well as a history of domestic violence – where the father has made a number of inappropriate and violent posts on Facebook – where the mother has not taken any steps to encourage the child to spend time with the father – where the expert evidence supports the reintroduction of the father to the child – where the Court is satisfied that there is no unacceptable risk of the child being abuse if the child were to renew a relationship with the father – where it is ordered that both parties undertake counselling – where the Court is satisfied that it would be in the child’s best interests for the mother to have sole parental responsibility and for the child to live with the mother – where it is ordered that the father spend supervised time with the child initially at a children’s contact centre then by the maternal grandfather leading to unsupervised time.

Family Law Act 1975 (Cth) – s 60B, s 60CC, s 61DA

APPLICANT:

Mr Bosco

RESPONDENT:

Ms Sullivan

INDEPENDENT CHILDREN’S LAWYER:

Nelson & Co

FILE NUMBER:

ADC

284

2012

DATE DELIVERED:

6 November 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Justice Dawe

HEARING DATE:

28-30 October 2013;
27-31 October 2014 & 14 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lee (Oct 2013); Mrs Read (Oct/Nov 2014)

SOLICITOR FOR THE APPLICANT:

Adelaide Lawyers

COUNSEL FOR THE RESPONDENT:

Ms O'Connor (Oct 2013); Mrs Lindsay (Oct/Nov 2014)

SOLICITOR FOR THE RESPONDENT:

SE Lawyers (Oct 2013); All Family Law (Oct/Nov 2014)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Nelson & Co

Orders

The mother do have the sole parental responsibility for the child B (“the child”) born on … 2008.
The child shall live with the mother.
The child shall spend time with the father for six [6] visits of two [2] hours duration at the Suburb C Children’s Contact Centre (“the CCC”) with such visits to occur on a fortnightly basis on a weekend and with the father’s time to be supervised at all times by a worker engaged at the CCC.
Within fourteen [14] days the mother and father do all things necessary to re-enrol in the CCC to give effect to paragraph 3 hereof.
For the purposes of paragraph 3 the mother request and authorise the maternal grandfather to deliver the child to the CCC at the commencement of the visits and collect her therefrom at the conclusion of such visits.
The mother do ensure that she is not present at any time at the CCC or within the immediate vicinity thereof when the above visits are scheduled to occur.
Further the mother do ensure that she does not accompany the child on the travel arrangements to and from the CCC.
Immediately upon the conclusion of the six [6] visits referred to in paragraph 3 hereof (or in the event of the CCC suspending visits) then the child shall spend time with the father as follows:
8.1each weekend for a period of three [3] hours supervised at all times by the maternal grandfather for a period of eight [8] visits;
8.2the visits do occur on either the Saturday or the Sunday of each weekend at times agreed upon between the father and the maternal grandfather and in default of agreement each Sunday between 10.00 am and 1.00 pm;
8.3the visits to occur on a location agreed between the father and the maternal grandfather PROVIDED THAT such location is not the home of either of Mr D Sullivan (“maternal grandfather”) or Mr E Bosco (“paternal grandfather”);
8.4the visits to occur in the absence of any third parties (including the mother) SAVE AND EXCEPT upon the conclusion of six [6] of the eight [8] visits supervised by the maternal grandfather, MS F and the father’s other children (“the child’s half-siblings”) are at liberty to be present;
8.5the mother do ensure that she is not present at any time or in the immediate vicinity of the agreed venue of the visits AND FURTHER that the mother does ensure that she does not accompany the child on the travel arrangements to and from the visits;
8.6the mother take all steps to facilitate and to encourage the child to attend upon all such visits.
At the conclusion of the visits at the CCC the mother and father do all things necessary (at the joint and equal expense) to cause a report to be prepared by the said service as to the progress of the visits.
The father be and is hereby restrained and an injunction is granted restraining him from:
10.1abusing, denigrating or otherwise speaking badly of the mother or her family on Facebook or otherwise in the presence or hearing of the child or permitting any other person to do so;
10.2physically disciplining the child or permitting any other person to do so;
10.3permitting the child to come into contact with or communicate with the paternal grandfather or permitting any other person to allow this;
10.4using inappropriate swear or vulgar language in the presence or hearing of the child or permitting any other person to do so;
10.5permitting the child to hear or see obscene lyrics or songs or heavy metal horror or violent music or movies whether by image or sound or permitting any other person to expose the child to such things;
10.6discussing these proceedings with or within the hearing of the child.
The father be at liberty to provide to the child copies of photographs of himself, the child, the child’s half-siblings, Ms F and/or the paternal grandparents AND FURTHER the mother do all things necessary to ensure the child receives and is encourage and permitted to keep same.
The father be at liberty to obtain, at his own expense, copies of all school reports, school photos or other information relating to the child’s school attendance and progress.
Within one [1] month from this date the mother do attend upon a psychologist on a not less than monthly basis for the purposes of engaging in therapeutic assistance regarding these orders and to develop an understanding of the need to support the child’s relationship with the father and practical strategies to assist same.
The mother do meet any costs of and incidental to the therapy referred to in paragraph 13 hereof.
The father do continue to attend upon Ms G for the purpose of receiving ongoing therapeutic assistance regarding the issues of:
15.1    impulse control and emotional reactivity;
15.2    the father’s desensitisation to violence;
15.3    any problems with anger or intolerance to others;
15.4    any issues directly related to violence;
15.5    any other issues identified by Ms G.
The father do meet any costs of and incidental to the therapy with Ms G.
Forthwith upon the mother engaging a psychologist pursuant to paragraph 13 hereof and prior to her first appointment the mother do advise the Independent Children’s Lawyer (“the ICL”) in writing of the name of such psychologist, his/her contact details and the date of the first appointment.
The ICL do cause Ms G and the mother’s psychologist to be provided with a copy of the judgment delivered by the Honourable Justice Dawe.
The mother be and is hereby restrained and an injunction is granted restraining her from changing the child’s principal place of residence from the greater metropolitan area of Adelaide unless she has the prior written consent of the father.
The mother do provide the father with written advice of any significant issues regarding the child’s schooling or medical/health care including details of treating medical/health professionals and information as to any diagnosis, prognosis and treatment.
The father be hereby authorised to communicate with the child’s treating medical/health professionals with respect to any information as to any diagnosis, prognosis and treatment.
Upon the conclusion of six [6] months of time supervised by the maternal grandfather and UPON CONDITION that the father has supplied to the mother and the ICL a report from Ms G which confirms that the father has the capacity to provide suitable unsupervised care for the child the father do thereafter on an agreed date or failing agreement on a date not more than three [3] weeks from the date of the report of Ms G the father spend time with the child each alternate Sunday from 10.00 am until 5.00 pm such time to be unsupervised with the maternal grandfather to deliver and collect the child to and from the home of the father for a period of six [6] months.
At the expiration of the period of six [6] months the father spend time with the child each alternate weekend on Sunday from 10.00 am until 8.00 pm and at such other times as may be agreed in writing.
At the expiration of a further period of six [6] months the father spend time with the child:
24.1during school terms each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday;
24.2during school holidays at times to be agreed between the parties and failing agreement for a period of not less than five [5] continuous days and nights at dates nominated by the father PROVIDED THAT such dates do not include the child’s birthday, the mother’s birthday or Christmas Day;
24.3PROVIDED THAT handovers take place in a manner agreed in writing by the mother and father and failing agreement by the maternal grandfather delivering and collecting the child to and from the father’s home.
The appointment of the ICL be discharged one [1] month after the commencement of the father spending unsupervised time with the child.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 284 of 2012

Mr Bosco

Applicant

And

Ms Sullivan

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between the applicant father (“the father) and the respondent mother (“the mother”) relate to the final parenting orders concerning B (“the child”) born in 2008 now aged 7.
The proceedings commenced in January 2012. The final hearing began in October 2013 and was completed in October and November 2014.

Background

The father was born in 1986 and is currently 29 years old. The father is employed as a logistics officer.
The mother was born in 1987 and is 28 years old. She describes her occupation as a “sole parent”.
The mother and father and commenced their relationship in August 2007. The child was born in 2008. The parties separated around June 2010. Though the date of separation is not agreed between the parties.
After separation the father continued to visit the child one day a fortnight during the weekend for a few hours. By arrangements made between the mother and the father, the child spent time overnight with the father on approximately four occasions commencing in July 2011.
Although the child commenced spending overnight time with the father in July 2011 this ceased and the father’s time with the child returned to each alternate weekend during day time only towards the end of October 2011.
The mother alleges that in late October 2011, and at various times in November 2011, the child made statements to her which she interpreted to be allegations of sexual abuse by the father.
In November 2011 the mother made claims that the father had hurt the child’s genital area. Subsequently, complaints were made to various government departments and the police. The mother alleged a history of domestic violence by the father. The father denied the allegations of any abuse of the child and denied the allegations of domestic violence by him.

Procedural History

The father commenced proceedings by filing the Initiating Application on 25 January 2012. The mother filed a Response on 20 March 2012.
On 25 May 2012 an Independent Children’s Lawyer (“the ICL”) was appointed. Subsequently reports were obtained at the request of the ICL from psychiatrists concerning both the health of the mother and the father. These were obtained in July 2012 from Dr H.
In October 2012 the matter was transferred to the Family Court of Australia by Federal Magistrate Mead (as she then was).
Thereafter family assessment reports were prepared by Ms I (13 February 2013 and 7 October 2014).
At the commencement of the trial in October 2013 the father relied upon the Further Amended Initiating Application filed on 20 September 2013. The mother relied upon her Further Amended Response filed on 21 August 2013.
At the first part of the trial in October 2013, the father gave oral evidence and was cross-examined. His witnesses, Ms F and Ms J also gave evidence and were cross-examined.
The evidence of Ms G was interposed.
On the third day of the trial the parties negotiated an interim settlement.
By consent on 30 October 2013 (when the father was represented by Ms Lee of counsel, the mother was represented by Ms O’Connor of counsel and the ICL by Mrs Tinning of counsel) it was ordered:
UPON NOTING:
That the trial has proceeded over three days and will be adjourned on a part heard basis to accommodate the father engaging in therapy with Ms G of S Psychology
IT IS ORDERED:
1.That on or before 4pm Friday 1^st November 2013 the parties do all things necessary to enrol in the supervised contact program at the Suburb C Children’s Contact Centre with the parties to make themselves available to attend any subsequent allocated intake appointments.
2.That during the period of the adjournment the father do spend time with the child B born 20 July 2008 on the following terms and conditions:
(a)for a period of two (2) hours with such visit to occur each three weeks under supervision at Suburb C Children’s Contact Centre with such visits to commence no earlier than 15^th February 2014 and to conclude no later than 31^st October 2014;
(b)the visits to occur on a weekend day at times advised by the Children’s Contact Centre;
(c)the visits to be strictly supervised at all times by a worker engaged at the Children’s Contact Centre.
3.That the father do forthwith attend upon his general medical practitioner for the purpose of a Mental Health Care Plan being prepared with a view to the father being referred to Ms G of S Psychology for therapy as provided for in paragraph 4 hereunder.
4.That the father do forthwith attend upon Ms G of S Psychology or such other psychologist approved by all parties including the Independent Children’s Lawyer in the event of Ms G’s unavailability for the following purpose:-
(a)engaging in therapy directed towards his maladaptive personality traits including but not limited to:
(i)the father’s problems with anger and intolerance towards others;
(ii)the father’s emotional reactivity and impulse control;
(iii)the father’s desensitisation to violence;
(iv)any other issues directly related to his parenting capacity; and
(v)any other issues identified by her.
5.That the father attend appointments no fewer than every three weeks or at such greater frequency as recommended by Ms G (noting that S Psychology close for a period of four weeks over Christmas) and Ms G be provided copies of these orders by the fathers solicitor.
6.That for the purpose of such therapy referred to aforesaid Ms G do:-
(a)conduct a Personality Assessment at the commencement of such therapy and again at the conclusion of July 2014;
(b)prepare a report as to the father’s diagnosis and progress with such report to be available no later than the 15^th of August 2014;
(c)be provided with and consider interim reports from the Children’s Contact Centre advising as to the progress of the father’s time with the child and his interaction with the child;
(d)advise the Independent Children’s Lawyer in the event she considers the father should be referred to any other professional for assessment or treatment including psychiatric treatment;
7.That the father do meet any costs of and incidental to the therapy and consequent report from Ms G.
8.That upon the conclusion of each second visit at the Children’s Contract Centre, the parties do all things necessary to cause the Director of the Centre to prepare a report as to the progress of the visits, with the father to meet any expense associated with same and the reports to be provided to both parties and the Independent Children’s Lawyer.
9.That the parties do attend upon Ms I for the purpose of an updated Family Assessment with
(a)such appointments to occur in September 2014 and to include observed interaction between each of the parties and the child;
(b)Ms I to be provided with and consider the report from Ms G and reports from the Children’s Contract Centre and any further material provided by the parties and / or the Independent Children’s Lawyer;
(c)The parties to bear equally the cost associated with the updated Family Assessment report;
(d)The updated Family Assessment Report to be made available to all parties by 5 October 2014.
10.That the parties do file and serve any further affidavit material upon which they intend to rely at trial no later than 1^st September 2014.
11.That the matter be listed for compliance checks and directions before Justice Dawe on a date to be advised by no earlier than 7 October 2014 at 9:15 am.
12.That until further order both the parties be and are each hereby restrained by injunction from:
(a)discussing the proceedings with or within the presence or hearing of the child or allowing any third person from doing so;
(b)publishing on any social media site any information or comment on these proceedings;
(c) denigrating the other party to or within the presence or hearing of the child or allowing any third person from doing so.
13.That in the event either party become aware of a third person publishing on any social media site any information or comment on the proceedings, they do use their best endeavours to cause that person to remove such material.
14. That this matter be listed for Trial 27 October 2014 (five days allowed).
When the matter was heard by me on 3 October 2014, counsel for the parties and the ICL had changed. Mrs Read represented the father, Mrs Lindsay represented the mother and Ms Gelson appeared as the ICL.
When the trial resumed on 27 October 2014 the Court heard further evidence from the father, Ms J, (paternal grandmother) and the mother. The evidence of the expert Ms G was interposed. The Court also heard the evidence of the Ms K Sullivan (maternal grandmother) and Mr D Sullivan (paternal grandfather).
On Friday 31 October 2014 the family report writer, family consultant Ms I gave evidence.
On 14 November 2014 closing submissions were given and the judgment reserved.

Orders Sought

At trial the father provided a document entitled Proposed Orders of Applicant Father [Mr Bosco]. The orders sought were detailed. By way of summary they provided for the parties to have equal shared parental responsibility and that the child live with the mother. The father sought a graduated approach to time with the child commencing with two hours each week supervised by the maternal grandfather. Eventually his time with the child would increase to seven hours each week unsupervised. The father proposed that upon the child turning 8 years old his time would extend to include school holidays.

The father sought an order for an updated family assessment report following the child’s supervised time with the father. The orders also proposed that both parties attend counselling and undertake a parenting course. There were then set out detailed, specific orders in relation to communication between the parties about schooling, health and the general care, welfare and development of the child.
At trial the mother provided a document entitled Orders Sought by the Mother at Trial. The mother proposed that she have sole parental responsibility, that the child live with her and the father be restrained from communicating or contacting the child.
In the alternative the mother proposed a graduated approach to the father spending time with the child commencing with two hours each alternate weekend to eventually seven hours per fortnight. The mother sought that all time spent with the father be supervised by the maternal grandfather. There were then set out detailed, specific orders about the father spending time with the child. The mother proposed that the father continue counselling and undertake a parenting course.
At trial the ICL provided a document entitled Orders Sought by the ICL. The ICL proposed that the mother have sole parental responsibility and that the child live with the mother. In relation to time spent with the father, the ICL proposed a graduated approach commencing with two hours each fortnight, supervised at the Suburb C Children’s Contact Centre (“CCC”), to eventually each weekend for a period of three hours, supervised at all times by the maternal grandfather. It was also proposed that at the conclusion of the visits at the CCC, the parties request a report to be prepared by that service.
The ICL proposed detailed orders regarding the behaviour of the father in the presence of the child and that upon delivery of the judgment in these proceedings the mother attend upon a psychologist and that the father continue to attend upon his counsellor.
At the conclusion of nine months of supervised time with the child, the ICL proposed that the father be at liberty to reapply to this court for further parenting orders.

The Law

Part VII of the Family Law Act 1975 (Cth) (“the Act“) sets out the matters in which the court must consider for parenting orders. The relevant sections are set out below:

Section 60B

Object of Part and principles underlying it

The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.

Section 60CA

Child's best interests paramount consideration in making a parenting order

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Section 60CC

How a court determines what is in a child’s best interests

Determining child’s best interests

Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Section 61DA

Presumption of equal shared parental responsibility when making parenting orders

When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Section 65C

Who may apply for a parenting order

A parenting order in relation to a child may be applied for by:

(a)either or both of the child's parents; or
(b)the child; or
(ba)a grandparent of the child; or

any other person concerned with the care, welfare or development of the child.

Summary of Evidence

At the commencement of the trial in October 2013, counsel agreed that Dr H’s reports could be received without him being required to give evidence. The psychiatrist’s reports deal with the mental health of both the father and the mother. Mr L’s report dated 22 May 2012 was also received.
The father relied upon the following documents:
·further Amended Initiating Application filed 20 September 2013;
·trial affidavits filed 20 September 2013 and 3 September 2014;
·the affidavit of Ms F filed 20 September 2013;
·the affidavits of Ms J filed 20 September 2013 and 3 September 2014;
·the affidavit of Mr M filed 20 September 2013;
·the affidavits of Ms G filed 19 February 2013 and 19 June 2013;
·the affidavit of Mr O filed 22 August 2014.
The mother relied upon the following documents:
·further Amended Response to the Further Amended Initiating Application filed 21 August 2013;
·trial affidavits filed 8 October 2013 and 30 September 2014;
·the affidavit of Mr D Sullivan filed 8 October 2013;
·the affidavit of Ms K Sullivan filed 8 October 2013;
·the affidavit of Mr P filed 8 October 2013;
The ICL relied upon the following documents:
·the affidavit filed 30 July 2012 to which is annexed the psychiatric reports of Dr H;
·family assessment report of Mr L dated 22 May 2012;
·the affidavit of Ms I filed 23 October 2013 to which is annexed the family assessment report dated 1 November 2012.
·the affidavit filed on 21 July 2014 to which are annexed reports from the Children’s Contact Service; and
·the affidavit filed on 10 October 2014 to which is annexed the family assessment report of Ms I dated 7 October 2014.

The Father’s Evidence

In his original affidavit the father sets out what he claimed to be his version of the history of the relationship of the parties and his time spent with the child. This included a series of SMS messages between the mother and father, when the mother indicated that she wanted to move overseas with a friend, Shane, and take the child with her. There is also reference to an incident in a nightclub in October 2010 after which the father claims there was difficulty seeing the child.
In his initial trial affidavit he refers to the last time he saw the child on 28 October 2011. He sets out his opposition to the allegations about him abusing the child. He categorically denied any sexual abuse of the child. In his affidavit he referred to the child “licking tongues”, saying, that it happened for a while but he had discouraged it. He also claimed that this was something he had seen the child do with the mother.
The father’s evidence in the first affidavit set out his then living arrangements. The father was residing with the paternal grandfather. Initially, the father claimed to be unaware of the paternal grandfather’s criminal convictions. He proposed seeking alternative accommodation if he was able to spend overnight time with the child.
His affidavit referred to his relationship with Ms F, having been in a relationship with her since January 2013. She was then expecting a child in October 2013. They were not living together at that time.
The father indicated in his initial affidavit that he was prepared to undertake a gradual re-introduction with the child initially supervised, if necessary.
In the first part of the trial the father’s affidavit was received. He was then cross-examined at length by counsel for the mother.
Much of the cross-examination related to Facebook entries and SMS.
Many of the Facebook entries related to lyrics from songs which were violent and others which contained “racist” comments or “anti-gay” comments.
One particular entry referred to “rape and violent attacks upon a woman”. His explanation for this was that it was sent to a particular friend and that they were trying to “psyche each other” by way of shock factors.
Questions were also put to him about postings on the Facebook which referred to “belting children”. He conceded that he had thought physical discipline was okay some times. He referred to this as being “a tap on the hand”.
He was also cross-examined about the paternal grandfather’s convictions for assault and attempted rape. During cross-examination he conceded that he had been told about allegations which had been made against the paternal grandfather by the paternal grandfather’s stepdaughter. He had been informed that the allegations had been made up.
Some of the answers he gave in relation to the knowledge of the paternal grandfather’s convictions were inconsistent.
During more cross-examination he conceded that there may have been a period in 2011 when both he and the child the child had been together naked. Only after long cross-examination did he concede that this may not have been appropriate.
The father strongly denied the mother’s allegations that he had flushed the toilet whilst the child was sitting on it.
In this latter part of the cross-examination he conceded that having read the allegations in the mother’s affidavit (which he had not previously considered) he would agree that there was a reason for the mother’s caution about the child spending time at the paternal grandfather’s house. He agreed that he would make sure that his time with the child would be in the absence of the paternal grandfather.
During the lengthy cross-examination he was also cross-examined about allegations the mother made about him pushing her and grabbing her around the neck. He denied that he had been violent towards the mother.
During cross-examination he conceded that he had made comments which appeared to be intolerant of other religions and people who were not driving their cars properly, particularly old people.
During the cross-examination about changing the child’s nappy, he conceded that he had cleaned the child using nappy wipes. He denied wiping her too hard or touching her in any inappropriate way.
The cross-examination by counsel for the ICL also focussed upon the father’s understanding of the impact his Facebook postings would have upon the mother’s attitude towards him.
He conceded that at times he had posted material which was inappropriate. He claimed that at the time he was frustrated and also at other times depressed.
His denial that he identified with extreme levels of violence was however convincing.
During re-examination the father agreed that many of the postings in the year 2009 and 2010 were disturbing, offensive, intolerant and some horrific. He denied that he still held the views expressed in those Facebook postings and was emphatic when he said he did not want his daughter to be exposed to those views. He agreed that he would remove the entries. He also agreed to refrain from any physical discipline of the child and that he would undergo further counselling with Ms G and parenting training.
The father then gave evidence that he believed he had benefitted from Ms G’s counselling because he was working on more patience, tolerance, reasoning with the child, listening better and not being so impulsive.
The father was convincing in this regard as he also was in relation to attempting other strategies such as reading books and increasing his interaction with friends and family.
In re-examination he indicated that he would consent to an injunction preventing his daughter from having any contact with the paternal grandfather.
During the first part of the trial the father’s friend, Ms F, also gave evidence. She was described in the affidavit as the “father’s partner”. She was born on 4 February 1994. She arrived in Australia in 2006 with her family. Her evidence was that she had been in a relationship with the father since January 2013, after meeting online through mutual Facebook friends. She does not reside with the father but claimed to be planning and saving for a deposit to purchase a home with the father. At the time of the affidavit being sworn she had just had a newborn child by the father. She had not met the father’s child (who is the subject of the litigation).
Her affidavit also referred to anonymous Facebook posts sent to her mother which referred to the father in derogatory terms.
During her oral evidence she confirmed that she was still living with her family and that the father in these proceedings visited regularly, usually every weekend and sometimes for two or three nights a week. Although she admitted to knowing some of the information concerning the paternal grandfather’s convictions, she said that she did not know much detail. She maintained that she was not concerned about the paternal grandfather, as she said she had spent enough time with him to judge his character.
When questioned about the Facebook postings by the father, she agreed that some of the older postings indicated that the father may have been depressed at the time.

Ms F was cross-examined in detail about the Facebook postings by the father and her knowledge of the paternal grandfather’s convictions.
Overall her evidence was straight-forward and not challenged significantly.
During the first part of the trial the paternal grandmother gave evidence. She is an enrolled nurse. She was cross-examined on her affidavit about the father living with the paternal grandfather, rather than living with her. Her explanation was that it was closer to the father’s workplace.
She was cross-examined about her knowledge of the allegations the mother had made concerning the father’s sexual abuse of the child.
She denied that she had attempted to persuade the mother not to report the allegations or that she had been dismissive about the allegations that the father had put his face near the child’s genitals.
Her evidence was interrupted whilst Ms G was interposed. When the paternal grandmother was recalled she was further cross-examined. She admitted videoing the mother and child at the shopping centre in April 2012, but denied that it was disruptive or too close to the child at the time.
The father relied upon the evidence of the psychologist, Ms G, who prepared reports on 19 February 2013 and 19 June 2013. Her evidence was interposed during the first stage of the hearing. She was cross-examined at length by counsel for the mother and the ICL.
The first report notes that one of the issues at the trial was likely to be the lyrics of “death metal” songs posted on the father’s Facebook site.
The first report was written after the father consulted with Ms G on five occasions ranging from early October 2012 through to February 2013. She had the benefit of also reading the report of Dr H, the psychiatrist, (report dated 19 July 2012).
Part of Ms G’s report reads as follows:
[Mr Bosco] has attended his sessions regularly and has participated readily, reporting feeling comfortable with my therapeutic style. He has successfully dealt with me challenging his thoughts and behaviours and been able to consider other points of view. He has consistently expressed his desire to do all that he can to demonstrate to the Court his capacity to be a positive influence in his daughter’s ([B]) life, and to be the best father he can be. He is confident that he will be able to address the concerns raised about him, including the allegation made in late 2011 that he had touched the child inappropriately, which he has denied.
There is also detailed consideration of the Facebook posts and concludes:
It would appear, on the basis of the context [Mr Bosco] has given me, that posting the lyrics reflects immaturity and impulsivity at that time (reportedly approximately 2009), but his current presentation is more considered, at least when not under undue stress.
Ms G’s second report is dated 19 June 2013. It relates to consultations with the father from late February 2013 to April 2013 (four further occasions). The report recommended further sessions to help consolidate the father’s progress. Part of the report includes:
Intervention with [Mr Bosco] has involved helping him to understand his potential role with his daughter in guiding her to develop morals (e.g. pro-social behaviour, ideas about how women should be treated). Intervention has also focused on [Mr Bosco’s] capacity to cope with frustration, and instead of reacting, to self-monitor, pause and reflect, and to develop tolerance by focusing on an empathetic response.”
Ms G maintained her views during her oral evidence. She gave brief evidence-in-chief and was cross-examined by counsel for the mother. During this cross-examination Ms G admitted that she did not consider the therapy had concluded but thought more work could be done with the father. The cross-examination also included detailed questioning about the postings the father had made on Facebook. She maintained that progress had been made but there was still a need for ongoing sessions.
Ms G was also cross-examined by counsel for the ICL, again with some emphasis on the Facebook postings by the father and the benefits for the father and the child for ongoing therapy for the father.
Overall, the evidence of Ms G was that of careful, considered expert opinion. She maintained that further therapy would be of assistance for the father and that she was willing to continue the therapy.
When the matter was due to resume on Wednesday 30 October 2013, counsel and the parties requested time to give consideration to proposed orders. The Court then received the detailed consent orders which provided for interim arrangements and adjournment of the trial until October 2014.
The further trial affidavit of the father filed on 3 September 2014 indicated that the father had enrolled at the CCC for supervised contact with the child. The sessions were arranged for two hours every three weeks to commence on 22 February 2014. His evidence was that the mother failed to attend with the child on the first occasion. On subsequent occasions while she attended, he asserts that she refused to allow the child to participate in the supervised time. The father maintained that the mother has expressly refused to allow the time to take place and has discouraged the child.
The affidavit also refers to the ongoing sessions of therapy he undertook with Ms G. His affidavit dealt with his current circumstances indicating he was still employed full time as a logistics officer, was residing at the paternal grandfather’s home and was still in a relationship with Ms F.
Ms F and their child Q, lived with Ms F’s parents. They continue to have plans to buy a home in the future.
He sought updated information concerning the child involved in these proceedings and expressed a willingness to undertake ongoing therapy or attend courses and participate in gradual re-introduction with the child.
The father was again cross-examined by counsel for the mother. Again, the cross-examination dealt with the Facebook postings. He was requested to provide a printout of Facebook pages from October 2013 through to end October 2014. He admitted that he was still using the same Facebook page and had the same friends on Facebook. He agreed that he would not like the child to read his Facebook pages.
He also accepted that the mother was genuinely concerned about his postings on Facebook.
Again, the father said that he would like the paternal grandfather to establish a relationship with the child but respected the mother’s views of concern about the paternal grandfather’s past behaviour.
The father was also cross-examined again by counsel for the ICL. Whilst he maintained that he had changed his attitude he conceded that he was still referring to overtly violent lyrics. He maintained that he was no longer becoming as frustrated as he had been in the past and was more calm and capable of “thinking things through”.
The father agreed that he would continue his monthly sessions with Ms G for the next 12 months. He reiterated that he would not expose his child or any child to the violent material.
The evidence during cross-examination from the father was that he was not yet residing with Ms F because of financial concerns.
Although he maintained that he had good experience of his relationship with the paternal grandfather, he agreed that he would not expose the child to the paternal grandfather during the time he spends with the child. He proposed that he would spend his time with the child at this mother’s residence or at his partner’s residence until he and his partner could afford their own property.
There was a further affidavit received from the paternal grandmother filed on 3 September 2014. Her affidavit was supportive of the father, expressing her view that he had improved since he continued his therapy with Ms G. She referred to his attempts to spend time with the child and conversations she had had with the maternal grandmother. She maintained in her affidavit:
The maternal grandmother denied my request following during conversation that I had with her. The maternal grandmother stated to me such things as “we will do anything to prevent you [and the father] from having time with [the child]” and she made further threats which included that she will go to the “media” if the father was successful in obtaining an order for time with the child.
She was cross-examined again by counsel for the mother. In particular, she was asked about violent, abusive sounding postings on Facebook. She remained supportive of the father having a relationship with the child.
As Ms G was not available to give evidence until a later time, the mother’s case was then opened.

The Mother’s Evidence

The Court received the further affidavit of the mother sworn on 30 September 2014. The affidavit set out the particulars of the attendances at the CCC. The mother and the child attended a familiarisation session before the first scheduled was scheduled for late February 2014.
The affidavit confirms that the mother said that there was an error about the dates to explain why she did not attend on the first occasion. She maintained that she took the child to the CCC on the dates allocated in March, April, May and June 2014. She set out her explanation for the child not spending any time with the father. Further visits were cancelled after the failed attempt in early June 2014. The mother maintained that the visits did not take place because the child refused to participate.
The mother’s affidavit indicated that her relationship with Mr P “had broken down”.
The mother was then cross-examined by counsel for the father. The mother was clearly reluctant to admit that she had agreed to, and consented to, the order for the father to have supervised time at the CCC. She finally conceded that she had agreed to the consent order in the previous October. She did concede that if she encouraged her daughter to do something then the daughter was likely to do it. The mother maintained however that she did not encourage her daughter not to attend the time with her father, but said “it was always her choice. I didn’t do anything to make her not want to go to it”. Her evidence was that she had told the child that it was the child’s decision as to whether she went or not.
The mother conceded that the child was present when she said that having to take the child to the CCC for time with the father made her feel physically sick. She also conceded in cross-examination that the child may have picked up on the mother’s anxiety about attending the CCC she conceded that children “like to please their parents”.
When questioned about the possibility of the father’s mother being a supervisor of the father’s time with the child, she said that she did not trust the paternal grandmother.
When questioned about further times when she took the child to the CCC, her reply were words to the effect “I just took her there and that was it”. She also said words to the effect “I knew I had to encourage her but I couldn’t do it”. She was asked detailed questions about the CCC report and maintained that the report was false in part.
When the mother was asked about the comment made that she was taking the child to see a psychologist, her reply was that “she hadn’t cos she couldn’t get her to see anyone”.
During cross-examination the mother also admitted to facts contained in the contact centre report which indicated that the mother commenced crying in front of the child. At first the mother said that the child would not have heard anything, but then conceded that at the time the child was sitting at the same table as the mother.
When specifically asked in cross-examination whether, if the Court made an order that the child spend time with the father, she would comply with it her answer was “no”. She then started crying.
Subsequently, the mother was cross-examined about the allegations of child abuse by the father. She was unable to be specific about the times and how the conversation started which involved the allegation that the child made that her father had “poked her down there”. She conceded that although she alleged that there had been 10 occasions when the child had been flinching when she went to wipe her genital area, she did not make any arrangements to take the child to see a doctor until much later.
During cross-examination the mother admitted that she had continued to see a psychologist, Dr R, approximately every six months. She conceded that she was seeing the psychologist to obtain medication. She also conceded that at the time of the earlier part of the trial she was not on medication but that now she was on medication.
The mother maintained that she did not have any confidence in Dr R, but did not explain why she had not made other arrangements.
When asked whether the mother would participate in a parenting programme if she was ordered to do so, she said that she would. She also said that she would only be doing it because she had been told to.
The mother was cross-examined in detail about the messages passing between the mother and father and in particular those concerning the child.
During the cross-examination the mother agreed that she had alleged that the child had said “Daddy touched me”. She also conceded that she had told the grandmother that the child had used the word “poked” and not “touched”.
During the cross-examination the mother was questioned about violent pushing incidents between her and the father and conceded that during one argument that she had hit the father in the groin.
She could not explain why if the allegations she made about the father’s poor behaviour and violence towards her had been true that she had not made any reports to the police, save and except that she said she did not think that they would do anything.
The mother maintained that she did not want the father to have any unsupervised time with the child. She conceded that the maternal grandfather would agree to be the supervisor.
After the evidence of Ms G was interposed, the mother’s cross-examination by counsel for the ICL resumed. When asked whether she had any intention to comply with the consent orders made in October 2013, the mother’s reply was “only if my daughter said she wanted to”. She conceded that she had not told the child that she had agreed to her going to see the father. She also said when asked she was hoping that the child would not want to go to see her father, she replied, “I didn’t want it to happen”.
The detailed cross-examination confirmed that the mother had not taken any steps to encourage the child to spend time with the father and had been opposed to others encouraging the child.
In further cross-examination by counsel for the ICL the mother’s answers to questions concerning the allegations the child made which the mother interpreted as “sexual abuse” were not convincing and at times were inconsistent.
There were also inconsistencies in the mother’s evidence about what she reported to the authorities and what the reports from the authorities recorded. In particular, at one time the mother said that the child had said words to the effect “he hurt me inside”. When further cross-examined about her affidavit of March 2012, she conceded that the child did not say “he hurt me inside”. Her response was “I just got mixed up, sorry”. She denied that she had reported that the child had “redness and sore in the genital area” and said she “didn’t remember saying anything about any infection”.
During the detailed and thorough cross-examination by counsel for the ICL, the mother accepted that there was insufficient evidence to establish a finding of sexual abuse, but she remained convinced that it had happened.
Notwithstanding the detailed questions she had been asked previously, the mother said that she had not thought about how she would assist the child to re-establish a relationship with the father, nor had she turned her mind as to how she might help the child if it was ordered that the child spend time with the father.
The maternal grandmother was recalled, the Court having received her affidavit filed on 8 October 2013. She was cross-examined by counsel for the father. She conceded that she was not present when the conversation about “secrets” between the child and the paternal grandmother took place.
Although, the maternal grandmother maintained her views and supported the mother’s views, she was at times not able to be specific and was also inconsistent in some of her answers concerning what the child had said.
The Court then received the evidence of the paternal grandfather who had filed an affidavit on 8 October 2013. He was shown the affidavit of the mother and provided his comments on whether he agreed with it or not. On some occasions he said he could not recall and on other occasions confirmed the evidence.
He was then cross-examined by counsel for the father. He admitted that on occasions when he had made statements it was based only on his belief that things had happened.
His evidence was that he was prepared to supervise the father’s time with the child for up to two hours on weekends “for as long as it takes ‘til my granddaughter can safely report”.
He was further cross-examined by counsel for the ICL and conceded that he would supervise on a weekend for four or five hours “if that was necessary”. His evidence was that it would be the child’s choice if she wanted to spend time with the father, but then conceded that he would openly encourage her as long as he was there to make sure she was safe.
On the following day the ICL called the evidence from Ms I, psychologist. She was asked whether she had told the mother that the mother should “fake it” when arranging for the child to be in the father’s presence. Ms I’s evidence was that she would usually say words to the effect “to pretend” or give the “impression to the child” that she was comfortable with the child meeting the father.
Her evidence was that if the child was to spend time with the father, even supervised time, it would be helpful for the mother to attend counselling and that the counsellor should have the benefit of the Court’s judgment. It was also important that the counsellor have experience in the area of encouraging one parent to support time with the other parent and to assist the mother in dealing with her anxiety.
Ms I supported the ongoing therapy between the father and Ms G.
During the cross-examination, Ms I, confirmed that the maternal grandfather would be a more balanced and appropriate person to be the supervisor of the father’s time initially. It was her suggestion that the maternal grandfather take the child to contact centre initially.
Ms I’s evidence indicated that she recognised the benefit of having final orders made but believed that there would be benefit to having a review of the orders before unsupervised time took place.
Ms I’s recommendation was that the father spend time every weekend with the child for a short time and then extend it to provide for the introduction of other persons from the father’s family group.
The father’s counsel did not seek to cross-examination Ms I.
Cross-examination by counsel for the mother was initially on the recommendations of Ms I about supervised time and the benefit of having a report before the matter returned to Court.
Ms I was also cross-examined about the child’s behaviour and the mother’s response to her belief about the child having been sexually abused by the father.
The witness was also questioned about the inappropriate Facebook postings by the father.
It was also put to the witness that the mother may have difficulty with any order for the child to spend time with the father. At the conclusion of the detailed cross-examination Ms I’s proposals and recommendations were not significantly changed.
All of her recommendations were to reintroduce the father to the child on a cautious basis, with supervision initially and then reverting in due course to overnight time.

Discussion of evidence and findings

Notwithstanding the concerns the Court has about the father’s attitude as displayed in his Facebook entries, he was convincing in his evidence when he firmly denied the allegations about abusing the child.
In contrast the evidence of the mother and her witnesses about when the allegations were made, what was actually said and in what circumstances the child made the allegations, was not consistent. The evidence provided by the mother as to the allegations neither supported a finding that the father had abused the child, nor did it support the mother’s claimed ongoing belief that the child had been sexually abused by the father.
I also accept the father’s evidence that his counselling with Ms G has improved his understanding of the need for patience and tolerance, and given him more insight into other people’s views of his disturbing and violent music lyrics posted on Facebook.
The evidence of the father’s partner, Ms F, indicated that she was a supporter of the father and that in due course they may, when finances permit, commence residing together.
The paternal grandmother also gave evidence which was supportive of the father. I accept her evidence that she believed the father.
The mother’s evidence from time to time did fit the category as described as the ICL’s counsel as “belligerent”. That in itself does not impact upon issues that deal with the best interest of the child, however, the psychiatric assessment of the mother included a finding that the mother, whilst not fitting the diagnostic criteria for a personality disorder, did have some maladaptive personality traits.
Her presentation when giving evidence indicated that she was very opposed to the father spending unsupervised time, and to a certain extent, any time with the child.
The basis of her opposition, however, was the allegation of sexual abuse of the child and what she perceived to be the risks to the child in the father’s care.
Whilst there is some basis for the mother’s concern about the father’s offensive postings on Facebook, there is also positive evidence that the father has accepted the criticism of these postings and has taken steps to address his attitude and appropriate presentation.
In that regard I accept the evidence of the father, rather than the criticism made by the mother.
I also accept the mother had cause for concern about the paternal grandfather and his prior offences and the father’s attitude towards those offences, however, the father has indicated a willingness to abide by a Court order which would prevent the child spending any time with the paternal grandfather.
The evidence contained in the reports of Mr L, and the more recent evidence of Ms I and the reports of Ms G, support orders which would reintroduce the father to the child. I accept and rely upon their evidence.
In determining the best interests of the child the Court takes into account the objects and principles set out in s 60B. The Court considers those matters set out in s 60CC (2) and (3).

Primary Considerations

Taking into account the evidence, in particular of the expert Ms I and the father’s treating psychologist Ms G, I am satisfied that there will be a benefit to the child to have a meaningful relationship with the father. She has the benefit of a meaningful relationship with the mother.
Having heard all of the evidence I am satisfied that it has not been established that the child was sexually abused by the father or in his care. I am also satisfied that it has not been established that there is any unacceptable risk of the child being abused, either sexually, physically or psychologically, if she were to renew her relationship with the father, provided that this relationship is re-established in a timely manner.
I also bring into account the risk to the child of psychological harm to which she may be exposed if the mother does not carry out her duties to encourage the child to spend time and have the benefit of a meaningful relationship with the father. Whilst this factor has been considered I do not accept that it is a sufficient barrier to orders which have the potential to give to the child the benefit of a meaningful relationship with her father.
The risk of psychological harm being caused by the mother is a factor. This risk can be overcome however by the mother obtaining suitable counselling and if necessary ongoing treatment.

Section 60CC (3)

Additional considerations.

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

I have considered the evidence of Ms I and the views expressed to Ms I by the child and the family assessment report. Taking into account the child’s age and background, including the ongoing influence of the mother, only limited weight should be given to the child’s views.

(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);

The mother has the primary relationship with the child and has maintained an ongoing influence over the child. The child has no current relationship with the father, nor any of the father’s family, save and except that she has had a limited relationship with the paternal grandmother.
I have taken into account also the relationship between the child and the extended family of the mother, including the good relationship which appears to exist between the child and the maternal grandfather who has expressed a willingness to assist the child by supervising some of the time the father spends with the child if ordered.

(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; and
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The Court is also required to take into account the willingness and ability of each of the child’s parents to “facilitate, and encourage, a close and continuing relationship between the child and the other parent”. In this matter the mother has demonstrated that she was not willing at this time to facilitate or encourage any relationship between the child and the father.
I am satisfied that the father will, with appropriate counselling and assistance, be willing and able to encourage the continuation of the close relationship between the child and the mother.
Due to the length of time that the father has not spent time with the child that there will be some effect upon the child by the brief separation from the mother. This possible negative impact will be substantially reduced by the presence of supervisors of the father’s time at the contact centre or by the maternal grandfather until such time as the relationship has been re-established.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

This is not a factor to be considered in this matter.

(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs; and

I am satisfied that both parties have the capacity to provide for the day to day needs for the child. I accept that the father has undertaken therapy for his inappropriate attitude towards his violent music lyrics and will continue his counselling.
The mother will benefit from counselling to assist her in reducing the emotional and psychological risk she may cause the child by her attitude.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

These factors have been considered under the other headings.

(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;

This factor not relevant.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

I am satisfied that the father has now an appropriate attitude towards the child and now understands his responsibilities. The mother has a very protective attitude towards the child, but has not demonstrated her understanding of the responsibility of a mother to encourage the relationship between the child and the father. She maintains that the reason for this is her ongoing belief that the child has been abused and will be at risk in the father’s care. This alleged belief is not soundly based. The mother will be required to undertake counselling to assist her in supporting the child’s relationship with the father.

(j)any family violence involving the child or a member of the child's family;
and

(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;

I have taken into account the allegations of the mother and the father’s denial of violent or controlling behaviour. I have also taken into account the serious concerns the mother has about the paternal grandfather. These factors need to be seen in light of the evidence of the father, which I have accepted, that he will protect the child and will obey an order that she not come into contact with the paternal grandfather.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

Various orders were proposed at the conclusion of the trial providing for interim orders with trial periods of the child spending time with the father and then the matter returning to Court before final orders could be made.
Taking into account the length of time which has passed since the final hearing of the matter and the delivery of this judgment and the current age of the child, it is preferable to make an order that would be least likely to lead to further proceedings concerning this child.

(m)any other fact or circumstance that the court thinks is relevant.

One of the factors to be considered is whether the child contact centre is an appropriate place for the resumption of the time spent and how the Court can assist the mother in encouraging the child to spend time with the father. The orders will therefore provide for time to be spent at the contact centre and if that fails for the time to be spent supervised by the maternal grandfather. The orders will also provide for the mother to undertake counselling and for the father to continue his counselling with Ms G, if Ms G considers the father requires that further counselling.
The factors set out in s 60CC (4) and (4A) have been considered.
The presumption of equal shared parental responsibility (s 61DA) does not apply in this because the mother’s asserted ongoing belief and her attitude towards the father satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. I am satisfied that the best interests of the child are such that the mother should have sole parental responsibility but would be required to inform the father of significant events relating to the child’s welfare.
Taking into account all of these matters I am satisfied that it is in the best interests of the child for the mother to have sole parental responsibility for the child, for the child to live with the mother and for the child to spend time with the father for a period of time supervised at the CCC and then by the maternal grandfather leading to unsupervised time.
For the above reasons I make the orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and seventy three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 6 November 2015.

Associate:

Date: 6 November 2015

[2015] FamCA 962

6 November 2015

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