BUCKLEY & BUCKLEY

[2013] FamCA 534

FAMILY COURT OF AUSTRALIA

BUCKLEY & BUCKLEY

[2013] FamCA 534

FAMILY LAW – CHILDREN – With whom the child lives – Parental responsibility – Where Father seeking orders to spend supervised time with the child in the presence of a family member or at a Contact Centre – Where Mother seeking orders for the Father to have no contact with the child – Where allegations by the Mother that the Father has sexually abused the child – Where Father has a low grade intellectual dysfunction –   Interim Orders made – Child to live with the Mother – Mother to have sole parental responsibility – Father to have contact with the children in the presence of the paternal grandparents or paternal family – Updated Family Report to be prepared.

APPLICANT: Mr Buckley

RESPONDENT: Ms Buckley

INDEPENDENT CHILDREN’S LAWYER: Mr Nigel Grainger, Solicitor

FILE NUMBER: BRC 3227 of 2011

DATE DELIVERED: 21 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 30 May 2013 to 4 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele of Counsel appearing for the Applicant Father

SOLICITOR FOR THE APPLICANT: JMW Legal

COUNSEL FOR THE RESPONDENT: Mr Galloway of Counsel appearing for the Mother

SOLICITOR FOR THE RESPONDENT: Rhonda Sheehy & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr L of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED THAT:

1. All previous Orders be discharged.

2. The proceedings be adjourned to a date to be fixed before the Registrar, for the listing of a mention before the Honourable Justice Bell, not before March 2014.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The child, B born … July 2005, live with the Mother.

2. The Mother shall have sole parental responsibility for the child.

3. The Father spend time with the child, in the presence of the paternal grandparents and/or paternal family, commencing Sunday 23 June 2013, in a graduating structure as follows:

   (a)       for three (3) months, on Sunday each alternate weekend for a period of      three (3) hours commencing at 11.00 am, with changeovers to occur at           the C Town Children’s Contact Centre;

   (b)       for three (3) months, on Sunday each alternate weekend for a period of      five (5) hours commencing at 10.00 am, with changeovers to occur at          the C Town Children’s Contact Centre;

   (c)       for three (3) months, each alternate weekend from 3.00 pm on Saturday      until 10.00 am on Sunday, with changeovers to occur at the C Town        Children’s Contact Centre; and

   (d)       thereafter on alternate weekends from 10.00 am on Saturday to 5.00 pm      on Sunday with changeovers to occur at the local McDonalds or such other place as the parties agree in writing.

4. The Father communicate with the child by telephone on Tuesdays and Thursdays from 6.00 pm to 6.30 pm, on a telephone number provided by the Mother to the Father, with the Mother to ensure the child is available for such telephone call and that such telephone communication to be in the presence of any of the Father’s family.

5. The Father spend time with the child, in the presence of the paternal grandparents and/or paternal family on Christmas Day 2013 from 10.00 am until 1.00 pm, with changeover to occur at the local McDonalds or such other place as the parties agree in writing.

6. The paternal grandparents and/or the paternal family to attend the changeovers with the Father referred to in Orders (5)(a), 5(b), 5(c), 5(d) and (7) herein.

7. The Father, in the presence of the paternal grandparents and/or paternal family, is at liberty to be involved with the child’s school and with her extra-curricular activities.

8. The Mother to inform the Father of any health issues concerning the child and the Father be at liberty to deal independently with any of the child’s medical service providers.

IT IS FURTHER ORDERED THAT:

1. The Independent Children’s Lawyer attend to Mr D preparing an updated Family Report by no later than January 2014.

2. The parties shall attend and ensure the child attends all necessary appointments for the preparation of the updated Family Report.

3. The Independent Children’s Lawyer given leave to supply to Mr D all updating Court documentation and any updated subpoenaed documentation together with a copy of my Orders and Reasons for Judgment dated 21 June 2013.

4. The Independent Children’s Lawyer given leave to re-list the matter on the giving of forty-eight (48) hours notice in writing to all parties.

5. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Buckley & Buckley 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 BRISBANE

FILE NUMBER: BRC 3227 of 2011

Mr Buckley

Applicant

And

Ms Buckley

Respondent

REASONS FOR JUDGMENT

1. This matter relates to a child, B born in July 2005.  The child is now aged almost eight.  She is the child of the Applicant Father Mr Buckley and the Respondent Mother Ms Buckley.

2. The parties married and commenced living together in 2005.  They eventually separated under the one roof in or about August 2008, however they remained in the former matrimonial home which was owned by the Father and remained together in that home until November 2010.  The Mother remained living in the former matrimonial home afterwards until such time as the Court ordered that she vacate the former matrimonial home.

3. On the 23 December 2010, an Order was made by consent in the Magistrates Court at E Town, allowing for the child to live with the Mother and that there be no time spent with the Father.

4. In January 2011 it was alleged that the Father had sexually interfered with the child, but the Queensland Police Service took no further steps in the matter.

5. Subsequent to separation the Father has been living with his parents, Mr J and Mrs M Buckley at F Town and the Mother has been living with members of family. She had, as I have said, until she was ordered to remove herself from the matrimonial home, lived in the former matrimonial home at G Town with the child and her brother Mr H who at this stage was aged 28 years and her foster sister named J who was at that stage aged 17 years.

6. The Father is seeking to spend time with the child on a supervised basis in the presence of a family member or at a Contact Centre.  The Mother is seeking that the child have no communication or spend any time with the Father.  She is however open in the longer term for the child having some independent information about her father by way of occasional letter or photograph.

7. It appears that the primary complaints of the Mother are that the Father has touched the child on the vagina and anus, that he has disclosed that he has sexual fantasies about the child and cannot trust himself, and the Father has a tendency towards sexualising children during their relationship and she alleges that she was raped by the Father I believe, on one occasion during their relationship.

8. On the evidence before me as far back as the 14 May 2002, a consultant psychiatrist one Dr K, was approached to determine whether the Father had the mental capacity to understand contractual relations and arrangements.  Dr K stated in a letter dated 14 May 2002, inter alia, that Mr Buckley:

   demonstrated a much more limited comprehension of written and spoken word.  He requires a trusted friend or advocate to fully explain in concrete terms what is intended or meant.

   Dr K went on further to say that in signing the contract for his ex-girlfriend, Mr Buckley:

   was vulnerable to manipulation and would have agreed to contractual arrangements without fully understanding his responsibilities.

   (see page 14 of 30 of Dr L, Clinical Psychologist and Neuropsychologist’s report filed 12 November 2012).

9. Subsequent to that information, the Father inter-married with the Mother.  The Mother and to a lesser extent her mother, are concerned that the difficulties which the Father exhibited was not in anyway disclosed to her.

10. I must say that I am absolutely staggered that the Mother has the effrontery to appear before this Court and say that the Father did not exhibit to her some deficiency in his intellectual compact.

11. The Father clearly, in his evidence before me, gave me the impression of a person who was not exhibiting his full age, that he was somewhat childish in his approach, his language was to a certain extent stilted, notwithstanding that he was able to converse quite fluently.

12. This was further supported by evidence put before me by Dr M Psychiatrist in his psychiatric assessment of the Father and his results are contained in his report filed 24 October 2012.

13. Dr M also carried out a psychiatric assessment of the Mother which is contained in his reported filed in this Court on 17 January 2013.

14. Dr L, Clinical Psychologist and Neuropsychologist, carried out an independent neurological psychological evaluation, such report filed in this Court on 12 November 2012.  Dr L was queried as to whether the Father’s intellectual functioning may have caused him to sign a document through a lack of understanding about what he was actually doing. 

15. Dr L is referring in this case to key documents in which it is quite clear that the Father admits to inappropriate conduct in relation to the child.  I refer to exhibit 6 being a statutory declaration written by the Father, he admits it is his writing, and dated the 13 December 2010.

16. The Father denies the composition of this document and indicates that this was brought about as a result of his copying or being told what to say by the Mother.

17. This is not the first of the statutory declarations which the Father has signed.  There was an earlier one dated the 27 November 2010 (exhibit 5), in which the Father says he wrote this at the direction of the Mother in order that the Mother may receive some form of social security pension.  The Father concedes that he wrote it, he says that as I have said, the Mother informed him as to what to write.

18. The statutory declaration dated the 13 December 2010 in itself would be exceptionally damning for the Father’s case, if it is accepted.  The Father denies that he composed it, as I have said, but indicates that he was directed to do so by the Mother and her brother Mr H.  On the face of it, this appears to be quite absurd.  The Father is an adult male and it would be, as I have said, impossible for anyone one would have thought, to be put in such a position to do this unless some external force was applied to him, or as there is evidence here, he could have been coerced into signing it through his lack of understanding about what he was actually doing.

19. I also note as set out in the paragraph 20 of the Father’s affidavit filed 14 April 2011, of allegations relating to money by way of an increase on the mortgage of the former matrimonial home to finance a personal loan so $40,000 could be given to the Mother’s mother (Ms N), the Father says as follows:

    20.In December 2009, [Ms Buckley] arranged for the mortgage to Westpac Banking Corporation that was secured over my home to be increased.  The mortgage was increased to refinance a personal loan that [Ms Buckley] had arranged for me to take out in January 2009 so that $40,000 could be given to [Ms Buckley’s] mother, the child [J].  I do not know why the child [J] needed the money.  When the mortgage was increased in December 2009, this personal loan was paid out and an additional $20,000 was borrowed that [Ms Buckley] gave to her brother, [Mr H].  I was told by [Ms Buckley] that it was so [Mr H] could purchase a motor bike.  I saw [Mr H] riding a new bike – a green ....  Another $20,000 was borrowed under the mortgage and used by [Ms Buckley] but I do not know where the money was spent.

20. The Mother denies generally these allegations but I accept what the Father has said and which reinforces my view that the Father can be overborne easily.

21. Dr L (supra) has gone into depths in an investigation into the Father’s mental and intellectual capacity and to use her words says:

    On the balance of probabilities it is my opinion that [Mr Buckley] has in some way had assistance to compose and write the information in the Statutory Declarations, either in the form of verbal dictation or being told what to write, or by copying already composed information.

    Dr L further went on to say:

    …

    I believe that [Mr Buckley’s] understanding of the information in the Declarations would be comprised by his reading disability, generally poor verbal skills and comprehension, and his low overall intellectual ability.  As indicated throughout the assessment, while [Mr Buckley] is able to read simple information and reports that he understands written and spoken language, his actual ability to comprehend information accurately, and draw inferences from verbal information beyond a simple level is very limited.

22. With this in mind, Dr M in his report filed 24 October 2012, quotes from Dr L’ report (supra) as follows:

    …

    [Mr Buckley’s] generally susceptible and compliant personality especially in relation to people he perceives as authority makes him vulnerable to engage in actions which he may not full understand or agree with.  The combination of his personality traits and low intellectual functioning makes him quite vulnerable to exploitation and should be considered carefully within the context of his current legal and family situation.

    [Dr M’s emphasis]

23. Subsequently, Dr M went on to consider the mental state of the Father (see page 18 of 23) in which he concurs with Dr L’s report (supra) with respect to there being a low grade intellectual dysfunction.

24. At page 21 of 23 of his report (supra), Dr M says:

    From a psychiatric perspective [Mr Buckley] does not present with a Major Axis 1 Psychiatric Disturbance and is not requiring any antidepressant or psychotropic medication at this time.

    I do not believe he requires referral to a Psychiatrist but he may gain some benefits from a counsellor [sic] who can assist him with dealing with his anxiety about his personal situation and the loss of contact with his daughter.

    To this end from a psychiatric perspective, I do not believe there is any impediment to him having an ongoing, loving and caring relationship with his daughter but given his intellectual functioning, that this best occur under his parents supervision initially at his parent’s  home on a graduated basis until such a time as [Mr Buckley’s] competence and capability to care for his daughter independently of his family can be determined.

25. In Dr M’s report filed 17 January 2013 he considers the psychiatric health of the Mother.  He sets out her complaints concerning the Father being an inappropriate, uncaring father and that she believes that the Father has sexually abused the child and she denies that she forced the Father into the aforesaid statutory declarations.  She is currently on a disability support pension for Carpel Tunnel Syndrome which she does not wish to have fixed she says, and also she gave evidence that it was not recommended by her treating medical expert.

26. The Mother’s mental state examination showed:

    …

    no evidence of any psychotic phenomena in the form of hallucinations or delusions.  The themes within the interview consisted of the patient’s expressions of distress and dismay with regard to the potential contact between her daughter and [Mr Buckley].  I felt that her insight was marginal but her judgment reasonable.

27. Dr M then did a Multi-Axial DSM IV Diagnosis, although I do notice there is a Multi-Axial DSM V Diagnosis available now. 

28. In Dr M’s summary of findings relating to the Mother he found that she remains distressed and agitated about the ongoing contact which was ordered by the then Federal Magistrate Jarrett (see page 22 of 27) and that she believes that any contact with Mr Buckley would be detrimental to her daughter and aggravate nightmares and distress (see page 23 of 27).

29. It is Dr M’s opinion that the Mother suffers from a Major Depressive Disorder for which she has been placed on antidepressant medication and is having ongoing support through her general practitioner.

30. Dr M further goes on to say (page 24 of 27):

    From a mental health prospective [sic], it is clear that [Ms Buckley] suffers from a constellation of symptomologies sufficient to warrant a diagnosis of a Major Depressive Disorder and I believe it is appropriate for her to maintain her ongoing medications at this time.  Furthermore she is currently on the Disability Support Pension for Carpel Tunnel Syndrome which mitigates her capacity to interact appropriately with her child.  Subsequently I believe that it is appropriate for this to be reviewed in terms of treatment from an orthopaedic perspective.

31. Mr D a well known family report writer, also has prepared two reports filed 13 October 2011 and 8 May 2012.

32. I refer to and incorporate Mr D’s findings, in particular his findings in his second report filed 8 May 2012, in which he observed the child reacting with the Father and with the paternal grandparents, whom I will touch upon at a later stage.  Mr D absented the room in which the Father and the paternal grandparents were interacting with the child and Mr D was then approached by both the Mother and the maternal grandmother, when the maternal grandmother became very agitated and upset.  It was plain to Mr D that the Mother and the maternal grandmother were disapproving of his leaving the room.  Upon his return to the room almost immediately, the child was relaxed, was well engaged with the adults and when it was time for the Father and paternal grandparents to leave, they did so with minimal intensity.

33. Mr D’s evaluation contained in his second report filed 8 May 2012, is quite interesting in that he says that in his view:

    68.      …

    The paternal grandparents have not had anything to do with [the child] since they last saw her in my rooms in 2011.  On both accounts it would seem that [the child] can become tearful during contact centre visits [see exhibit 11 being subpoenaed documentation from the [C Town] Children’s Contact Centre].  Her comments to me in respect of crying at the visits are concerning.  It is possible to draw an inference from those comments that she has been encouraged to cry at the visits and discouraged from playing, because if she has a nice time she may end up spending every day with her father.

34. Mr D was once again concerned about the maternal grandmother and more of her anon.

35. What do we have then in the Father’s case?  It is alleged that the Father is a sexual predator, that he has assaulted the child by touching her in the front and the back, that this has caused the child a considerable amount of distress and that he should not be trusted, that he is a person who has admitted to such disgraceful conduct and further that he is a sexual predator on the Internet.

36. It has been put before me by the Mother (see exhibits 3 and 4) the Father’s “Zoo” profile and the profiles of people he was chatting to online.  I have read through most, if not all of them, and in my view notwithstanding that he has attempted to interrelate with various other people on the Internet, it does not appear to me to be in anyway consistent with which could be classed as a “sexual predator”.

37. I note that all of the documents which have been put before me have in all probability been done in a very short period, probably before February 2008.  They do not in any way concern me.  They perhaps are giving more grist to the Father being an isolated, intellectually disabled man who is endeavouring to make friends outside of what appears to be an unhappy relationship between himself and the Mother.

1. The maternal grandmother is a person who concerns me gravely.  She has an extensive criminal history, she is a person who has very strong views in relation to the Father and it appears to anybody else who does not agree with her.

2. She is absolutely staggering in the evidence which she gave.  She indicates that as far back as the child being about five or six months of age, she was concerned with the Father’s intensity and view upon the child’s genital regions when bathing.  She came to the conclusion, as it appears on this and this alone, that this man was a sexual pervert and would do something sexually inappropriate to the child.  She had these concerns for a considerable period.  As I have said she has a very large criminal history and I refer to exhibit 1 as being her criminal history being supplied by the New South Wales Police Service on subpoena and exhibit 2 is her criminal history being supplied by the Queensland Police Service on subpoena.

3. It has fallen from the maternal grandmother in her evidence is that she is residing with the Mother and also residing in that house is one O of whom she has some fear that the Father has endeavoured to sexually approach him, he is now thirteen years of age. 

4. Mr H, the Mother’s brother, whom I touched upon briefly, would become more important somewhat a little later on, is now overseas and has been overseas for only a comparatively short time, some three or four months (see page 4 of the transcript dated 3 June 2013 of the maternal grandmother’s evidence).

5. In the early part of cross examination of the maternal grandmother by Counsel for the Father Mr Linklater-Steele (see page 5 of the transcript dated 3 June 2013 of the evidence of the maternal grandmother), he referred to the transcript of the tape of the conversation between Mr H and the Father (see exhibit 7) which looms very large in this matter.  This tape was allegedly taken by Mr H and it admits quite clearly to sexual interference by the Father with the child, and also I believe some concern about his having some sexual relations with O.

6. This tape was recorded around about September 2009.  The maternal grandmother admits that she heard the tape or part of it a short time after that period.  She said she only listened to a little bit of it when it was put to her by Mr H, but she found it too disturbing (see page 6 of the transcript dated 3 June 2013 of the maternal grandmother’s evidence).

7. But it was not until early 2011 that this tape was presented to the Police.  The maternal grandmother saying that it was up to the Mother to take action.  The maternal grandmother says at page 7 of the transcript dated 3 June 2013 of her evidence, “we [I assume that was Mr H and herself] went to the police station together with it and we handed it in”.  She was unable at that stage to be able to give any reasonably accurate time of when it was handed in, but it appears quite clearly from the Queensland Police Service records which have been put before me, that it would not have been any earlier than 2011.

8. So this woman has sat upon damning evidence from the Father of the child in relation to her granddaughter and she did nothing about it.  Her explanation for this appears perhaps at page 7 line 45 of the transcript of her evidence dated 3 June 2013, when I put to her:

   HIS HONOUR:        Why was it 15 months later?

   Ms N:Because my daughter has to do all this.  It’s not my child; it’s my granddaughter---

9. It appears that the Mother had the tape in her possession from about September 2009 because according to the maternal grandmother at lines 29 to 30 of page 8 of the transcript of her evidence dated 3 June 2013, when put to her by Mr Linklater-Steele that the Mother had it in her possession from about September of 2009, the maternal grandmother answered that, “she could have”.  It is quite clear subsequently at page 9 of the transcript of her evidence dated 3 June 2013, and this is also contained in the records from the Queensland Police Service, that this tape was not handed to the Police until the 27 January 2011.  Once again, the maternal grandmother’s excuse is, when it was put to her in cross-examination that fifteen months had elapsed from the time when she became aware, she says at page 10 line 4 of her transcript of her evidence dated 3 June 2013:

   Ms N:I can’t push my daughter to go and do something that she’s not ready to do, sir, because she has been abused herself.

   HIS HONOUR:        You tried to get her to go to the police, did you, during that 15 months?

   Ms N:Yes, but I can’t push her, - - -

10. Not only is the maternal grandmother of great concern wherein she attempts to abrogate any responsibility for the welfare of her grandchild, by saying that she told the Mother to do something about it and it was not done for some fifteen months.  It can mean only one of two things in my view.

11. Either one, the evidence contained in the tape is suspect because the evidence was gained by the Father being overborne by the Mother’s brother Mr H, or she did not believe it anyway.  I can see no other explanation.  The Father says that he was coerced into making the lengthy statement in which he admits to various misconduct in relation to children and he denies that in fact they were true.

12. Mr H has been available for a considerable number of years.  It has been known for a long time that this tape would in fact be the lynchpin of the Mother’s case, one would have thought, and yet he has not seen fit to file an affidavit nor had any application been made to have him give evidence as and by way of telephone.  I would have thought that I could be bold in accepting the statement by the Father that he was coerced into making such a “confession”. 

13. I must say also in passing, that it has been suggested that there is evidence that the Father is capable of giving evidence which is not correct.  I thought there was a classic example early in the Father’s evidence wherein there was a dispute as to what type of car the Mother had got.  On one hand it was supposed to be a red motor vehicle 1 and on the other hand it was a motor vehicle 2.  It was put to the Father that in fact the car was “X” and this was accepted and then when I put to him to the effect – “do you believe that it was that or was it this?” (“Y”).  He said, “no it was the other”.  There was no pressure put to bear upon him but he obviously acquiesced to the person of authority’s view that perhaps in his view he was wrong.  That in itself I thought was extremely important in coming to the conclusion that really the Father is very easily prevailed upon to make statements, which are not only in his interests but are in the best interests of other people.

14. The other allegations by the maternal grandmother and the Mother that in fact the Father held the child, when a baby, in a most inappropriate way with his hand between the child’s legs.  I called for a doll to be presented from the child minding area here in the Family Court and I asked the maternal grandmother to show how the Father was holding the baby.  There was nothing untoward, as I could see it, in the manner of the baby being held by her and consequently I cannot see how there could be any damage done to a child by way of the Father holding the child, as a baby, in a similar fashion.

15. It was a classic holding of the baby in the crook of the arm.  I must say that it concerns me intensely about the Mother’s and the maternal grandmother’s views of the Father.  I believe that their beliefs are highly exaggerated and are exaggerated solely for their own purposes.  I do not accept that they did not know that the Father was intellectually disabled.  I do not accept the Father has in any way exhibited signs of sexual inappropriate conduct towards the child.  I recognise that the Father himself is intellectually disabled, he has a clear learning disability, and it would be extremely difficult for him to look after the child on his own.  He has put forward his mother and his father and there are affidavits from the balance of his family consisting of two sisters and one brother, who would at all times be able to assist him in looking after his child on a comparatively limited basis.

16. Much was said, particularly by the maternal grandmother, of her dislike and distrust of the paternal grandparents.  I found the paternal grandfather a man of great sensitivity, sense, care and I found him quite a charming individual.  The paternal grandmother has worked in childcare for some ten years and is holding a Blue Card.  I can see no reasons which could be put forward that they should not be the person or persons who could overlook any contact that the Father may have with the child. 

17. I am fully aware of the authorities which indicate that it is possibly unwise to have close family members supervising contact, but in this case and on the material before me, I am more than satisfied that since there is no risk of sexual inappropriate conduct on the part of the Father, that the paternal grandparents are only protecting not only the child, but the Father as well.  I would have no hesitation in ordering that they do have a supervisory role in relation to the Father’s contact with the child.

18. What then should the contact be?  Unfortunately because of the vituperative attitude of the Mother and her extended family, that is the maternal grandmother and the brother, that there should be protection for the paternal grandparents and for the Father.  Consequently, I believe that the suggestion of Mr D is more attractive than any of the others and I refer in particular as set out in his second report (supra) should be put into force and effect and that is paragraphs 76 (a), 76(c)(i), 76(c)(ii), 76(c)(iii), 76(c)(iv), 76(c)(v) and 76(c)(vi).

19. Regrettably this is a case, which in my opinion, needs some monitoring by the Court.  I think that it is absolutely essential that the “Sword of Damocles” be held over the head, particularly of the Mother and the maternal grandmother and as such I cannot really make a final order.

20. I would order that this matter come back before me at the beginning of March 2014 and that there be an updated family report completed by Mr D by no later than January 2014.

21. It is incumbent upon me to consider whether or no the presumption of equal parental responsibility has been overcome.  It is quite clear in a case such as this, where there is such distrust on the part of the Mother and her family that any form of equal shared responsibility would fail.  I am further of the view, regrettably, that the Father’s intellectual ability perhaps is not of sufficient strength to enable him to be involved in matters for determination when he would be faced by a brick wall on the part of the Mother and her family.  Consequently I regret I cannot make that order.

22. Insofar as the substantial and significant contact; as I am pointing out in the orders made, I believe that such contact as has been suggested by Mr D, a very experienced family report writer, is significant and substantial and is reasonably practicable of being carried out.

23. Insofar as s 60CC matters are concerned; I am concerned about the relationship between the child and the Father, since I believe that there is an endeavour on the part of the Mother and her family to alienate the child from the Father.  I do have some confidence in Mr D’s report which albeit is some time ago, indicates that the child has a relationship with the Father and it is important that the child have a meaningful relationship with the Father.  I sincerely hope that the contact which I have ordered will increase and strengthen the relationship.

24. It is noted in the C Town Children’s Contact Centre’s subpoenaed documentation and which are exhibit 11, that on occasions the child was crying and it is quite clear that Mr D is of the view that the child has been encouraged by the Mother to do that, see exhibit 11 file note of the 8 January 2012.

25. But in the further handwritten notes contained towards the back of the subpoenaed documents from the C Town Children’s Contact Centre marked exhibit 11, referring to September, October, November and December of 2012, that the child’s relationship with the Father is good and particularly on the 9 December 2012 it is noted that, “[the child] ran to her father hugged him and said “Hello Dad””.

26. As I have said, I sincerely hope that the orders I have made will protect the child from physical or psychological harm.  I am of the opinion that psychological harm is being offered to the child by the attitude of the Mother and her extended family.

27. The views expressed by the child have been taken into consideration.  I have hereinbefore touched upon the fact that the child is now enjoying contact time with her father and notwithstanding, I would believe, to be pressure placed upon her to the contrary.

28. I am more than satisfied that the Father has the capacity to provide for the needs of the child, including emotional and intellectual needs, albeit on a somewhat limited basis insofar as his intellect is concerned. 

29. I am somewhat concerned about the Mother’s attitude to the emotional safety and wellbeing of the child.  May I say that if it had not been for the intellectual disability of the Father, this may have been a close run thing for the Mother for the child to remain with her.

30. I do not accept that violence or offer of violence has been perpetrated upon the Mother by the Father.  A Domestic Violence Order had been ordered, I believe, against the Father until about February of this year, but it was by consent and it was made without admissions by the Father.

31. The consent order which was made some years ago on 23 December 2010 in the E Town Magistrates Court, in my view, was particularly tainted by the fact that no consideration was given to the relevant authorities, nor was any consideration given to the provisions of s 60CC.  It appears as though it was done in a Court which is not experienced in this field, and I doubt very much whether in fact such a consent order would have been made in either the Federal Circuit Court or the Family Court.  In my Court it would not have been made without further evidence being put before the Court as to the understanding of the order made by the Respondent to that order that Respondent being the Father, and that he did not appear.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 21 June 2013.

Associate: 

Date:  21 June 2013