CAPEK & SAMERA

[2019] FCCA 3300

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAPEK & SAMERA [2019] FCCA 3300

Catchwords:
FAMILY LAW – Parenting – high conflict - sexual abuse allegation made by father against maternal uncle then withdrawn – genuinely held belief - unacceptable risk of harm to child.

Legislation:

Family Law Act 1975 (Cth), s.60CC
Evidence Act 1995 (Cth), ss.79, 140

Cases cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Re David (1997) 22 Fam LR 489

Briginshaw v Briginshaw (1938) 60 CLR 336

M & M (1988) 166 CLR

W & W [2005] FamCA 892

Applicant: MS CAPEK

Respondent: MR SAMERA

File Number: WOC 118 of 2016

Judgment of: Judge B Smith

Hearing dates: 17 September 2018, 18 September 2018, 19 September 2018, 9 November 2018

Date of Last Submission: 9 November 2019

Delivered at: Sydney

Delivered on: 15 November 2019

REPRESENTATION

Counsel for the Applicant: Ms Snelling

Solicitors for the Applicant: MDV Family Lawyers

Counsel for the Respondent: Ms Steggall

Solicitors for the Respondent: Shoalhaven Lawyers

Counsel for the Independent Children's Lawyer: Mr Anderson

Solicitor for the Independent Children's Lawyer:   Melea Mullard Lawyers

:

ORDERS

1. The applicant, Ms Capek born … 1978, to have sole parental responsibility for making decisions about the long term care, welfare and development of the child, X born … 2013.

   
   
   

2. The child live with the applicant.

   
   
   

3. The applicant is not to denigrate the respondent or his family or seek to lower him in the child’s estimation in any way.

4. The applicant is to provide to the respondent by email copies of the child’s school reports and photographs within 2 weeks of receiving them.

5. The child is to have no contact or communication with the respondent, Mr Samera born … 1978, other than as follows:

   (a)For the purpose of identity contact, the child is to spend supervised time with the respondent at a paid contact centre for four (4) hours four (4) times per calendar year.

   (b)The dates are to be agreed between the parties, and failing agreement shall be on the Saturday after the last week of each school term.

   (c)The times are to be agreed between the parties, and failing agreement shall be, from 10am to 2pm or such other time between 9am and 5pm as the contact centre shall nominate if 10am to 2pm is not available.

   (d)The respondent is to pay the entire costs of the contact centre.

   (e)The respondent’s mother Ms C may attend with the respondent, but no other person may attend without the applicant’s written consent.

   (f)For the purposes of communicating about these matters the applicant is to provide the respondent with an email address and is to check that email address on a monthly basis, and then every second day in the three week prior to the end of each school term. 

   (g)The respondent and applicant are not to communicate with each other except through this email address other than in emergency, and then only by text.

   (h)The respondent may send cards and gifts to the child in envelopes addressed to the applicant, and the applicant may monitor and pass on such cards and gifts as are suitable, but the applicant shall not unreasonably withhold such cards or gifts from the child.

   (i)

   At the commencement of year 7 the child shall be at liberty to determine whether or not he wishes to continue with these identity visits and he will not be required to continue with the visits if he does not wish to.

   
   
   

6. Pursuant to s.68B of the Family Law Act 1975, Mr Samera born … 1978, for the protection of the applicant and the child, be restrained by injunction on penalty of imprisonment from:  

   (a)approaching or coming within 100 metres of any place where the applicant or child might reside from time to time; and

   (b)approaching or coming within 100 metres of any place where the child might attend day care or school; and

   (c)

   approaching or coming within 100 metres of any place where the applicant might work from time to time.

   
   
   

7. Pursuant to s68C the injunction in Order 5 above pursuant to s68B of the Family Law Act 1975, is for the personal protection of the Ms Capek born … 1978 and the child, X born … 2013, and if a Police Officer believes on grounds that Mr Samera born … 1978, at which the injunction is directed, has breached the injunction they may arrest them without warrant.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 118 of 2016

MS CAPEK

Applicant

And

MR SAMERA

Respondent

REASONS FOR JUDGMENT

1. Introduction

i. Parties and people

1. These are parenting proceedings between the Applicant Ms Capek (“the mother”) who is 41 years of age and the Respondent Mr Samera (“the father”) who is 41 years of age and in respect of the one child of the union, X (“the child”) who is now 6 and in kindergarten.

2. Evidence was also given by the maternal uncle Mr B (“the uncle”) and Ms C (“the paternal grandmother”) and by Dr D (“the expert”).

3. Other people referred to in the evidence include the mother’s child from a prior relationship Mr E (“Mr E”) now almost 20, and Ms A (“the maternal grandmother”).

4. The parties commenced cohabitation in 2012, the child was born on … 2013, and then the parties separated in January 2015.  

ii. Agreed orders

1. It was agreed by the parties and the Independent Children’s Lawyer (“the ICL”) that the mother should have sole parental responsibility for the child and that the child should live with the mother. 

iii. The significant issues

1. The major legal disputes at the conclusion of the hearing were whether or not the father constitutes an unacceptable risk to the child of psychological harm, and, if so, whether that risk could be sufficiently ameliorated by supervision, including by “identity contact” time.

iv. Proposals

1. The mother and the ICL sought orders that the father spend no time with and have no contact or communication with the child.  No time limit was put on that order.  On that basis it was submitted that giving the father access to the school to obtain materials would not assist the child, and if considered appropriate the mother could organise for the father to receive that material.

2. The father’s final proposal was that the child spend substantial and significant time with him with orders sought for unsupervised alternate weekends, half of school holidays and identified special days.  In the alternative, he proposed the time be supervised by the paternal grandmother.

3. The issue was also raised by the father as to whether the paternal grandmother should have time with the child if the father was not having time, noting the mother’s evidence was that she would facilitate this if it did not involve the father, although no formal proposal was made by the mother or the ICL in this regard.

v. The withdrawn sexual abuse allegations

1. During the course of the proceedings the father made an allegation that the uncle sexually abused the child. 

2. The majority of the hearing, including all of the cross-examination of the expert, was conducted on the basis that the child’s identified behavioural problems were caused either by sexual abuse by the uncle in the mother’s home or by the father’s poor parenting capacity, creating an insecure attachment to the father and consequently to the mother.

3. After hearing the expert evidence, and noting that there was no reliable evidence to support the allegation, the father withdrew the allegation.

4. Despite the withdrawal of the allegation, it is central to what has occurred and consideration of the allegation forms an essential aspect of the determination in the proceedings.

2.  The sexual abuse allegations

i. History of the allegation

1. The father’s evidence was that he first “raised concerns” with the mother via the communication book after he noticed a change in the child’s behaviour around refusing a bath, being clingy and telling him to “shut up” on 21 July 2015.  His evidence was that the mother did not respond to his concerns and that these behaviours continued from July to November 2015.  

2. On 21 August 2015, the father alleges that the mother said that the child had scratched his bottom in the shower really hard and broken the skin.  This was also in the communications book, which also noted that the mother had cut and filed the child’s nails.  It is not clear from the father’s evidence or submissions what his concerns were about this event.

3. The father’s evidence was that on or about 13 February 2016, his concerns were raised when the mother wrote in the communication book that she did not believe in smacking or yelling, which he found “out of character” for the mother. Again, it is not clear from the evidence or father’s submissions what his concern was with this statement. 

4. His evidence was that on 17 February 2016 he asked the child “[d]oes anyone smack you” to which the child, in the course of the conversation, replied “Mr E smacks me.” The father says that he wrote this in the communication book but the mother did not respond. 

5. In March or April 2016 the father’s evidence was that the child said to him that the “Mummy takes me to the rude house.  Mummies [sic] house is a rude house” and on many occasions that:

   “I am not allowed to tell you anything. I get nervous and uncomfortable talking to you when Mummy is around.” 

6. The father then went to the police station and:

   “…informed them of the matters that [the child] had disclosed to me. The Police directed me to speak to FACS. I went to see FACS the next day and they advised me to call the helpline. FACS took no further action.” 

7. At the time the father decided to first report the abuse allegations, though not sexual abuse allegations, to the police and the Department of Family and Community Services (FACS), his evidence was that the child had changes of behaviour which he attributed solely to the likelihood of abuse at the mother’s house based on the above information.

8. On 13 January 2017, the father’s evidence was that the mother wrote in the communication book that:

   “…she did not appreciate me telling [the child] that [the uncle] was naughty and rude. I did not say this [the child] [sic].”

9. The father said that a week after the mother made the entry about the child’s bottom being sore he noticed that it was not red and did not have any scratches, and apparently based on the absence of any evidence of a problem a week later, which, the father took to be inconsistent with the statement that there had been scratches a week earlier, the father took the child to Dr F.  Dr F could not find any scratches or bruises either. 

10. The following week the father says the child said, unprompted, “[the uncle] hurts me this many times” and in response to the father’s then question “[d]id [the uncle] hurt you?” the child said “[y]es.”

11. The father says that he went back to see Dr F with the child, not about concerns of abuse despite the above, but “about [the child’s] sleeping issues” as the child had said he was having nightmares and, while they were there, also asked the child to repeat what he had said the day before.  His evidence was that the child repeated the allegation in front of the doctor.  Dr F’s notes do not record having heard the abuse allegation from the child only from the father. On the basis of the father’s report, that doctor referred the child to a specialist, Dr G, who, as a mandatory reporter, reported the father’s complaint.

12. The medical records do not support there being disclosures by the child, only reports by the father.

13. Despite his evidence that he had formed the view that the child was being sexually abused by the uncle in the mother’s household, at no stage prior to the family report interviews did the father raise with the mother his concerns so that she could act to protect the child, nor let her know that he was seeking medical consultations, police and FACS involvement.

14. The father raised the issue of sexual abuse with the expert during the family report interview on 6 March 2017.  The father told the expert his suspicions were supported by the fact the uncle had a “sexual interest in minors” as the uncle had “had a sexual relationship with a 15 year old girl”. 

15. The uncle filed an affidavit denying all of the allegations of sexual abuse.  He was available for cross-examination.  He was not cross-examined.

16. The expert informed the mother of the sexual abuse allegation by subsequent telephone conversation on 10 March 2017, as the expert had interviewed the mother before the father.  The mother confirmed that these allegations had not been raised with her. 

17. The mother and the uncle both gave unchallenged evidence that after being given notice of the allegation they took the precaution of not allowing the uncle to be alone with the child, for the sole reason of not facilitating the risk of the father making further false allegations. The father was not, of course, aware of that fact prior to the affidavits being filed.

18. On 22 May 2017, the father says that the child said to him that Mr E was hitting him and that his

    “…concerns became so great that I decided not to return [the child] to [the mother] to be able to have my concerns checked out by a specialist.”

19. On 24 May 2017, the Court made orders for the child to be returned to the mother, and if the father did not comply with this order, a recovery order would issue. The father complied with these orders, and no recovery order was issued.

20. In or about May 2018 the father’s evidence was that the child again confided in him about being hurt by the uncle saying: “[the uncle] did hurt me… he touched me on the leg, on my feet and on my willy.”

21. The child was interviewed by police at his preschool centre on 13 June 2018.  No disclosures were made and the case was closed.

22. The father then made an audio-visual recoding of himself speaking with the child and the child’s “disclosure” of sexual abuse by the uncle. He sent this to police on 18 June 2018, to persuade them to re-open the investigation. The police notes stated that as “…the child was lead [sic] by his father…” in the video, being asked “…tell me what [the uncle] did to you…” .  The father was told it was not evidence that could be used and that “…the case can be suspended as insufficient evidence to proceed.”

23. A copy of this video was only obtained shortly before the hearing.  It was shown to the expert in the witness box.  This recording and the expert’s interpretation of it is considered in detail below.

24. At the date of swearing his trial affidavit the father’s evidence was that “I continue to be concerned that he has been abused and touched inappropriately by [the uncle].” 

ii. Father’s further evidence

1. After hearing the expert’s evidence, which had had to be interposed in the middle of the father’s cross-examination on day three (3) of what was scheduled to be a three (3) day hearing, on the later fourth (4^th) day of hearing the father filed a supplementary affidavit by leave which stated, inter alia, that, having had access to the police and FACS files:

   “I… do not hold any concern for [the child].  I am satisfied that [the child] was not abused by [the uncle]…”

   and that he had “…not handled [his] concerns for [the child] and his maternal uncle well…” and recorded the child only because he was advised to by a doctor and his then solicitor. 

2. The father also gave evidence to the effect that he understood that he needed to develop better parenting skills and was committed to doing whatever was required to address the issues identified by the expert, considered below, and had started by completing an online course with Relationspace and was also seeking to arrange counselling for personal therapy. 

3. I note that I am comfortably satisfied that there is no reliable evidence whatsoever that the uncle sexually abused or abused the child and that this does not need to be considered as a possible fact.

iii. Issues that arise from the sexual abuse allegation

1. Firstly, the trial was run on the basis that the child’s agreed behavioural problems were either caused by the sexual abuse or the father’s self-centred parenting.  The withdrawal of the allegation in effect leaves only the father’s lack of parenting capacity as the available explanation for the child’s behavioural issues. 

2. If that is the explanation for the child’s behavioural problems, the issue arises as to whether the father’s supplementary evidence, which indicates that he has worked to change, should be accepted and whether or not he is an unacceptable risk of psychological harm to the child.  Also, despite there being no other hypothesis the father still sought to challenge the expert’s conclusions, and this question is therefore considered in detail further below.  

3. Secondly, there is an issue of whether this was a maliciously fabricated allegation, created solely for the purpose of obtaining a forensic advantage in these proceedings, and what that would say about the father’s indifference to his child’s needs and his parenting capacity.

4. Thirdly, if the allegation was not malicious but the consequence of what the expert described as “delusional” thinking, whether the father has, in reality, accepted that there was no sexual abuse as he alleges, and, if not, whether there is an unacceptable risk of the father causing the child psychological harm as identified in cases such as Re David (1997) 22 Fam LR 489.

3.  The expert’s opinion

i. The Report

1. The Court appointed Dr D to provide a family report.  She interviewed the father, the mother, Mr E, the paternal and maternal grandmothers, and observed the child with each parent.  The expert agreed in cross-examination that this was a screening assessment and not as in depth as a Chapter 15 report, so she was not able to offer concluded opinions about many of the risk factors identified below, and that this would therefore depend upon the Court’s findings on a range of factual matters.

ii. The expert’s qualifications

1. Although not challenged when her report was admitted into evidence nor when she was giving oral evidence, the expert’s qualifications, reasoning processes and the foundations of some of her opinions were challenged in the father’s closing written submissions.

2. Since 1974, Dr D has been awarded the degrees of: Bachelor of Arts (Educational psychology and linguistics); Bachelor of Social Administration (Social work); Bachelor of Education (Early childhood); Master of Letters (Psychology); Master of Applied Linguistics; Master of Conflict Resolution; and Doctor of Psychology.  She is also a registered psychologist with an extensive background in practice. 

3. There were challenges to her expertise, by the father, directed to her knowledge of the primary schooling system and the psychological capacity of the child to deal with educational demands of primary school. 

4. Noting, inter alia, the expert’s formal qualifications in early childhood education and psychology, and her extensive experience dealing with child-related psychological issues, and given that children are required by law to attend school so that understanding the psychological demands of schooling on children is essential to her work, I am comfortably satisfied that the evidence and opinions given by the expert on the topic of the child’s educational capacity and the likely impact on his future development of the identified risks were within her specialised knowledge which she has acquired through her training, study and experience, and that the opinions expressed were wholly based on that specialised knowledge within the meaning of s.79 of the Evidence Act 1995 (Cth).

5. I am also satisfied, for reasons set out below, that the expert’s reasoning process was fully exposed and capable of being followed and applied.  See: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.

6. There was also a challenge to whether the primary facts required to support her opinion were proved.  The primary facts required to found the expert’s opinion were clearly established and are dealt with below.

iii. The identified behavioural issue

1. Both parents agreed that the child was resistant to separation from his father.  It was agreed that this was causing the child significant stress with changeovers and having a “flow-on” effect. 

2. Other behavioural issues, identified by the father and accepted by the mother, included aggression towards the mother, physical reactions such as breaking into a sweat before changeovers, bed wetting, waking up with nightmares, having “meltdowns” and other evidence of significant psychological disturbance. These behavioural issues were not restricted to the child’s dealings with the parents and were also identified as occurring at pre-school.

iv. The withdrawal of the sexual abuse allegation

1. The father’s sexual abuse allegation was only withdrawn after the expert had concluded her oral evidence.

2. At the time of the family report, the father’s argument was that the child’s behaviour issues arose because the child was more strongly attached to him and did not want to live with the mother because he was being abused, including sexual abused, in the mother’s household.

3. The father’s proposal to address this issue at the time of the family report was to change the child’s primary residence to live with the father

4. The other alternative considered by the expert in the family report was that the father was self-centred rather than child centred, and was dealing with the child only in accordance with the father’s needs in the context of these proceedings, and that this was causing the child’s psychological distress and consequent behavioural problems.

5. The expert was cross-examined for the father on the basis that it was open to the Court to find that: the father was telling the truth about the disclosures; and, the child had been sexually abused by the uncle; and, that this explained the child’s resistance to separating from the father and the other observed behavioural problems; and, that this was evidence of poor parenting capacity by a mother who had failed to protect the child from sexual abuse.

6. The withdrawal of the sexual abuse allegation and the failure to press any other allegation of abuse made much of the cross-examination of the expert on behalf of the father irrelevant.

7. On one view, as there was only one hypothesis for the child’s behaviour available on the facts, no further consideration of the expert’s opinion is required.

8. However, given the father’s challenges to the expert’s expertise and reasoning processes, and that the reasoning process is relevant to the precise orders that should be made, it is necessary to consider the expert’s evidence.

9. The expert’s evidence must be understood in the context that both at the time of her report and cross-examination, the sexual abuse allegation had not been withdrawn and the allegation was one (1) of the two (2) alternative hypotheses she was considering.

v. Foundations of the expert’ opinion - attachment

a.  Attachment theory

1. The foundation of the expert’s opinion, which was not contested by any party, was that “attachment theory”, referring to the bond between the child in need of protection and the person who provides that protection, was critical to understanding the child’s behaviour.

2. All attachments are features of the child’s relationship with another person, here, the parents.  The attachment represents the best strategy the child can organise to elicit protection from their parent. 

3. Securely attached children are not anxious, because experience has taught them that if they signal their needs they will be reliably met, contingent on their needs. 

4. Anxiously attached children are ones who have learned that they cannot depend on their carer to reliably take care of their needs. For example, the children of addicts or people with mental health problems may not have their basic needs met, or will only have them met inconsistently and depending on how the parent feels or is functioning.  They learn that they cannot depend on their parent to get what they need.   

5. Similarly, in Family Law proceedings, many children are made anxious because parents are not responding to them contingently on the child’s needs, but rather only in terms of the parent’s needs in the context of the dispute.  In that context, the child’s needs of stability and low conflict are not prioritised, and further the child’s behaviour is often interpreted by a parent in a way that suits that particular parent’s argument, rather than in terms of the child’s motivations and needs.

6. Anxiously attached children may develop different strategies.  Some avoid calling attention to themselves through fear of a negative response.  Others make a big fuss if they have learned that this is the way to get attention, because normal cues are not picked up or responded to, or are used to feed the parent’s needs for affirmation.

7. While a certain amount of attachment anxiety is normal, the expert stated that the evidence showed that that the more conflict between the parents, and the greater the amount of exposure to that conflict, particularly if one parent is engaged in undermining the other parent, the more likely it is that the lack of a safe overall environment will undermine the child’s capacity to have a secure attachment to either parent. 

b.  The child’s attachments

1. The expert noted that her observation was that the father “…could neither soothe the child nor encourage him to separate calmly…” and “…was not observed to be an effective stress-regulator for [the child].”

2. Whilst the expert noted the mother was:

   “…somewhat more effective – but not entirely so – which suggests to me that the pressure to align which [the child] experiences in transitions between his parents has undermined his attachment security to both parents.”

3. The expert concluded that the child had anxious attachments to both parents and could not have a secure attachment to anyone in the high-conflict conditions he lives in.

c.  Possible causes of the child’s insecure attachments

1. In her report the expert considered the competing possible explanations as:

   “[t]he child's resistance to separation from his father, as reported and as observed, warrants careful consideration. If, as the father contends, this behaviour indicates the child is fearful of harm in his mother’s care, then her protective capacity must be doubted. On the other hand, if as the mother contends, this is an exaggerated display which the child puts on to satisfy the father, it speaks of [the child’s] anxious attachment to the father – which in turn is an unfavourable comment on [the father’s] parenting capacity.”

d.  Consequences for the child

1. The inability to have a secure attachment arises from learning that adults, or people, cannot be relied upon or trusted.  From the child’s point of view, at least one (1) of the parents is acting poorly, here the father, and the other parent is failing to protect the child from the conflict, and so also failing him, here the mother, through no fault of her own. 

2. The learned inability to trust anybody has grave negative impacts upon a child’s future.  It is associated with, inter alia, acting out and poor mental health outcomes.

3. The expert pointed out that “…more than 75 per cent of… people in jails are illiterate…” and that:

   “…there is a life-long trajectory which starts you off if you don’t start keeping up from the time you’re five and six. So that is a significant life-long setback. So if you have a child who already is showing signs of not being – not operating at the same developmental  of his age peers, you don’t want to do anything to set him back in his early years of schooling, when he’s getting the basics of numeracy and literacy - - - since he’s already starting behind the eight ball.”

4. This tied in to her views that the child is particularly vulnerable to educational delays considered further below.

vi. The expert’s assessment of the father

1. The expert also made certain observations of the father based on her interview.  The expert noted in her report that she did not consider the father to be a risk of physical harm or neglect to the child, but that the father:

   “…impressed me as totally lacking in curiosity about the inner workings of his child's mind except in so far as it served his confirmation bias (i.e. that the mother and her family mistreat [the child] so he does not like them).”

   and continued

   “When I began to outline a framework for understanding the children's motivated behaviour which was informed by insights from attachment theory and child development, he interrupted by reiterating his concerns about the maternal kin. He could not conjecture about any possible explanations for [the child]'s separation distress other than the one he had originally offered (albeit more by implication than by explicit argumentation supportive by objectively-verified evidence) – basically, the premise that the child prefers his father to his mother, due to adversity experienced in her care.”

2. The expert explained in oral evidence that in the events described in the paragraph above she was probing the father’s child focus, noting that people who are pre-occupied with their own emotional states and goals are less interested in their children’s needs.

3. The expert was cross-examined at length about her conclusions about the father’s behaviour at the interview when trying to separate from the child but stood by her conclusion that “…his attitude struck me as wanting to remain involved rather than snip the thread.”  That was consistent with the mother’s case.

vii. The expert’s assessment of the mother

1. The expert made certain observations about the mother based on her interview.

2. While the issue is not as relevant given the agreement that the mother should have sole parental responsibility and that the child should live with her, it is worthwhile noting that the expert did raise concerns about the mother’s passivity.  Otherwise the expert considered her a child-focussed parent.

viii. The expert’s assessment of the sexual abuse allegations

1. The father made submissions about the manner in which the expert dealt with the father’s sexual abuse allegations and whether, by implication, that amounted to bias on her part and so infected her recommendation for no time and no contact, even if her opinion was otherwise correct. 

2. The expert’s assessment was that the material presented to her did not persuade her that sexual abuse was likely to have occurred. Given the withdrawal of the allegation it is difficult for the father to now criticise the expert’s analysis of the likelihood of the occurrence.

3. The father submitted that the expert’s criticism of him in not raising the allegations with the mother if he believed them to be true so she could act to protect the child, and the possibility that this supported an argument of malicious fabrication, was also evidence of her bias.

4. The expert said in response to the father’s proposition in cross examination that as FACS and the Police would not act there was nothing the father could do and so no reason to tell the mother:

   “…I would not accept as a reason not to tell the mother that he thought the child was being sexually harmed, because if he thought the child was being sexually harmed and there was the possibility she didn’t know about it, she was more in a position to protect the child than anyone else. So I considered that negligent.”

   Okay - - -?---And that’s what makes me suspect the sincerity of the concern.”

5. I do not consider this to be evidence of bias given the obviously logical reasoning process behind that analysis.  Further, the expert would not give an opinion on whether or not she believed there was malicious fabrication stating this was matter for the Court.

6. It was then put to the expert for the father that he did not raise the sexual abuse allegations with the mother because he “did not want to create a bigger … fuss”, and the expert responded:

   “I’m not convinced. That shows considerable distorted cognition to think like that. If you are asking, as he was at that time, for shared and equal parenting, that means you must have some faith in the capacity to exchange information with the other parent. And that is not consistent with reporting things behind their back and not sharing – not sharing information with them.”  [Emphasis added]

7. She said:

   “I think that if you are seriously concerned about your child, the relevant thing to do is report it. An insensitive thing to do is take the child with you when you do it, and an insensitive thing to do is to badger the child about it and report the – and record the child while you’re doing that. That makes me more inclined to think it’s a dogged over-valued idea. That’s that sort of behaviour.” [Emphasis added]

8. In that context, the expert’s opinion was that if the belief as to sexual abuse was genuinely held, and if it was found that there was no evidence to support it, that belief was still unlikely to change:

   “that reinforces my view that contact is not helpful because – look, if you really truly believed your child was being abused, you would feel honour-bound to do something  about it, wouldn’t you? But if that is a delusional view, an inaccurate view, and you’re going to continue to do things like interview the child, take the child – take the child to the police station, you’re going to upset the child, without adding anything to his welfare. And that sort of view, that sort of very over-valued view is very resistant to disproof.”[Emphasis added]

9. The expert gave the following opinion as to the benefits of time with the father if the father still holds a genuine but false belief that the child was sexually abused:

   “If he was still – if – if he was still of a fixed view that there was no  – that there was a risk, in the absence of all evidence of any risk, that would not be helpful to the child, and contact is unlikely to be beneficial.”

10. Her evidence continued:

    “If the view that the father holds is communicated to [the child] by forceful questioning or repeated questioning, or by other means – that is the way the father talks in front of the child perhaps, would – would the child come to believe that there is an issue or a concern about the care of himself in his mother’s care, or the risk that pose – is posed by his relatives? Of course. And the younger the child is, the more likely that is. I don’t know if you’ve ever had the work of Snow and Pal quoted at you in this jurisdiction – you probably have – I often quote it in my reports, but there’s a great body of research on how false beliefs are elicited in children by repeated questioning, repeated injudicious questioning. And once a child has produced a false belief to satisfy someone else, on every time they repeat it, it becomes more fixed. So – and that is – and that’s – that’s true of all inaccurate eye witness testimony too, because memory isn’t like – isn’t like video tape - - -

    Yes?--- - - - you play it back, it’s the same very time. It’s like your computer. Every time you open it, you might fiddle a little bit, and when you shut the file, it’s not the same file. Our memories are like that. So children can be induced to have, well extreme views, things like satanic abuse, memories and so forth. But, yes, you can induce false belief. But the younger the child is when that begins, the more likely that is to happen, because children – for children under – under eight, and particularly children under six, seven, the boundary between fantasy and reality is more permeable.” 

11. It was in this context that the ICL made submissions that this case falls within the principles set out in Re David (1997) 22 Fam LR 489.

ix. Is the child’s education particularly vulnerable?

1. The expert gave the opinion that the child was “not a precociously developing child”… “[h]e’s less than average”.   

2. The expert noted that the information in the pre-school documents indicting:

   “…just how dysregulated [the child] can be when he gets upset. That can be a sign – that would be consistent with attachment difficulties and – and just being distressed by everything that’s happened that we’ve been talking about here today. It can also be a sign of neurological immaturity generally, and given that he has a – he has sensory processing difficulties and the fine motor coordination skills difficulties, I would say probably both. So if you have had a double whammy – genes and environment, you want to tone down whichever one you can, and you can’t do anything about the genes. So the environment has to be very calm, structured and focused on his needs, not asking him in any way to focus on meeting the needs of anybody else, i.e., you know, a parent who wants attention or preference from him.” 

3. The expert’s opinion was that the child was particularly vulnerable to educational set-backs and this was based in large part on a report prepared by an Occupational Therapist who specifically considered this issue using standardised testing and taking into account feedback from the school and the mother, which feedback was very similar.

4. This conclusion was challenged by the father, based on the information contained in the records produced by the child’s pre-school, Suburb H Learning Centre.  The expert considered that material, but concluded that the report prepared by an Occupational Therapist which identified specific deficits using standardised testing was more reliable than general comments in school notes.  I agree.

x. The video

1. The expert was shown a copy of the video which the father had taken of the father questioning the child.  It might better be described in a legal context as cross examining the child.

2. The expert’s final position was clearly influenced by the video of the father questioning the child.  She noted that what “…struck me more than anything else is the coercive nature of the questioning, very coercive questioning.”

3. She stated that a young child, when asked a question which it is clear the questioner wants answered a particular way, is:

   “…going to represent more likely an attempt to please you and say what the child believes … is expected, rather than reflect the child’s experience accurately.”

4. And very significantly she said “badgering a childlike that seems to me like a signal failure of empathy.”  She noted that half way through the child said “I love you, Daddy” which she interpreted as a plea to leave him alone.  She concluded that the child’s thought processes were “…pleasing to daddy or not pleasing to daddy, and I think he wants to say whatever is pleasing to daddy…” 

5. The father submitted that the expert placed too much weight on this single piece of evidence and had a knee-jerk reaction to it, infecting her final conclusion that there should be no time or contact with the father.

6. Prior to seeing the video the expert’s opinion was that while the child’s behaviour could be explained by the alleged sexual abuse, the factual history given to her to establish the abuse made it unlikely that such abuse occurred, and as the father’s interactions with the child described by the mother and consistent with her observations of him would also explain the child’s behaviour, she concluded the father’s conduct was probably the cause of the child’s behavioural problems but could not exclude the alleged sexual abuse as a cause.  

7. The expert summarised that position with regards the alleged sexual abuse saying “…just because a child has symptoms of something, that doesn’t tell you what the something is” and that while the sexual abuse as a cause “…is possible” the behaviours were “well explained by the high conflict he’s living in.”   

8. The video was created by the father.  He considered it evidence which supported his allegations of sexual abuse by the uncle and produced it to the police with a request to re-open the investigation.

9. The father clearly saw nothing wrong with the way he questioned the child, otherwise he would not have provided the video to the police.  It was evidence of what the father considered to be a reasonable interaction with the child.

1. The type of questioning shown in the video would, on the expert’s evidence, if it had occurred on a repeated basis over time, fully explain the child’s behaviour as described and observed by both parents and by the expert.

2. Further, absent the sexual abuse allegation no other explanation for the child’s behaviour is now offered. 

3. Further, the video puts context around the father’s evidence of similar “questioning” of the child when he took him to see Dr F in order to obtain a similar “disclosure”.  The father also gave evidence of other instances of “disclosures” to him.  As there was no sexual abuse, the only reason for the repeated disclosures to the father by the child would be repeated instances of such questioning. 

4. The video also lends weight to the mother’s allegations that the child would say things to her such as, “I don’t want to live with you, it is daddy's turn to have me for 5 days” and “I hate you I want to stay with daddy. That’s why you are a nasty mummy”, which the mother says is what the child says the father says.

5. In this context one piece of evidence can be of great weight and significance, and I agree with the expert that this video is a very important piece of evidence, and it is evidence to which I too give great weight.

6. In summary, as the father did not see anything wrong with such questioning there is no reason he would not have engaged in it, and as it explains the child’s behaviour and the repeated “disclosures”, and as there is no other explanation now offered for those facts, and as it is consistent with the expert’s analysis of the father’s behaviour and likely views based on her interview of him and before seeing the video, and as the video in my view adds weight to the mother’s evidence of the child repeating negative comments to her about her, I am comfortably satisfied that the evidence establishes that the father has consistently questioned and dealt with the child in a manner similar to that demonstrated in the video both in respect of the uncle, and also in terms of making adverse comments about the mother, and that this has caused the child’s insecure attachment to the father, and consequently his insecure attachment to the mother, and the other identified behavioural problems.

7. That still leaves the question of whether it was reasonable for the expert to infer, and whether the Court should infer, that this type of behaviour by the father is likely to continue if the child spends unsupervised time with him.

8. The genuineness of the father’s statement that he no longer believed the child had been sexually abused was put in issue in evidence by the ICL and the mother. 

9. In that context during his evidence the father was asked some questions by the Court.

   “All right. Can I ask you this: so let’s assume – and you say that you expect the police enquiry that – and if the – that nothing has happened between the uncle and [the child]. Do you accept that or not?---That’s the police’s opinion, yes.

   Well, do you accept that?---I accept that [the child’s] at an age now when he’s able and aware of what’s happening around him. I’m well aware that he knows now if there’s a problem he can tell a teacher, he can tell someone else. So do I believe that he’s going to be a lot safer now? Yes.

   You haven’t quite answered my question, but that’s all right. I will… Your Honour, I will tell you straight, I’m going to leave it all up to you in your hands at the end of the day.” 

10. He was asked some questions about whether or not he thought telling the child he had been abused, when he had not, could be bad for the child.  The father answered that he hoped the child “has forgotten” and referred to the fact that he, the father, still had “distressing visions” of the abuse which he had constructed in his mind and which he was trying to block out. 

11. The submission was made by the ICL and the mother that it was clear that contrary to his affidavit the father still believed that the child had been abused and that this created a significant risk to the child of spending unsupervised time, or any time, with the father. 

12. The transcript makes it clear that despite what he said in his second affidavit the father still believes that the child had been sexually abused by the uncle.  I find that the father genuinely holds this false belief.

xi. What are the consequences of the child in having no contact with the father?

1. The expert agreed that there was an affectionate bond between the father and child.  She said that the entire loss of the relationship with the father would be “an open wound” and if the child was to lose the father, who he loves, he would grieve the loss.

2. There is a risk that the child will incorrectly believe that the father no longer loves him and does not spend time with him because he, the child, is not good enough or not worthy of his father’s love, or because there’s something wrong with him.  Such conclusions would have obviously harmful effects on the child’s self-esteem and development.

3. Here the child would also lose his connection with the paternal grandmother which the expert captured under the concept of “social capital”.

4. The expert agreed in cross-examination that this would be a very significant and serious loss for the child.

xii. What are the risks to be balanced?

1. The expert identified the potential risk as the:

   “…harm of destructive parenting practices and having your attachment security to both parents ruined…”

   and the fact that if:

   “…the pattern that has happened up to now with the father … is going to continue, then that is going to be very destructive for [the child] and affect all his life chances and, certainly, the easiest thing would be no contact.”

   and that was to be weighed against the “open wound” of ongoing grief, and potential feelings of abandonment and loss of self-esteem the child would probably feel, and his associated loss of social capital.

2. That risk included the risk, referred to above, of the child being falsely convinced he has been sexually abused which is in itself a severe form of psychological abuse.

3. In weighing these up the expert stated that if the Court was of the view that the father was likely to continue acting in ways that made it difficult for the child to come back to the mother then:

   “that is going to have a bad impact on his schooling, and I think that will have a worse impact on him than not seeing his father between now and the time of eight or 10.” 

4. The expert was asked on behalf of the father whether her concern was just that the father would continue to question the child and the expert said:

   “No. I would say it’s wider than that. I would say that the fact that the father has continued to behave in that way bespeaks great deficits in empathy, and they would be manifested in what he did subsequently, which would be continue to try and undermine the mother, the child’s attachment to the mother, and make it uncomfortable for the child moving backwards and forwards, because that – that injudicious questioning is the tip of the iceberg.” 

xiii. The expert’s conclusion

1. The expert’s final position at the hearing was that:

   “I think there’s – it’s best if [the child] has no time until he’s a much older child, and – you know, a little child can’t withstand that sort of badgering. I saw it – remember at the time that I saw them? The father was proposing 50/50 care, and the mother was proposing the second weekend and a day in the off-week, kind of thing. So they were the two alternatives I was being offered as, you know, “What do you think’s better for this child?” I think, given that the father has apparently repeatedly gone to the police, and the police didn’t take it seriously, judging by what you’ve got – you’ve shown me, and judging by that badgering interview, it suggests that he won’t stop doing it. And when I saw [the child], he was already, as I’ve written in the report, made anxious by the transitions between parents.”

2. The expert articulated the basis of her opinion as being:

   “…my rule of thumb … that to maintain a secondary attachment, the benefits of the attachment have to outweigh the stress inherent in executing the – the arrangements, and I don’t think that condition is met at this stage of his developments.”

xiii. Is the father’s behaviour likely to change?

1. The expert expressed the opinion that, based on the father’s behaviour to that time, it was likely he would continue to act in the same way and so upset the child.  Her evidence was that:

   “[w]hen people have negative parenting practices, it’s part of their intrinsic personal characteristics. It’s characterological.” 

2. It was put to the expert that there was a possibility the high level of conflict would abate upon the conclusion of these proceedings, which would give rise to a more nurturing environment and assist him in having the benefit of a relationship with both parties.  The expert stated the likelihood of that occurring was a matter for the Court but that she tended to doubt the father would change.

3. The father having withdrawn the allegations of sexual abuse bears the onus of establishing that it is likely he no longer holds that view, and that it is like that his conduct will change. 

4. However, despite his affidavit his clear inability to give a direct answer to the Court’s questions about whether he still holds the belief the child was sexually abused comfortably satisfies me that he still holds that belief.  In that regard I note that this finding excludes the argument of a malicious fabrication.

5. I am not satisfied that it is likely that the father will be able to address the characterological issues of lack of empathy and child focus raised by the expert and that these factors, together with his genuinely held and over-valued belief that the child has been sexually abused in the mother’s household which is unlikely to change, make it likely that his interactions with the child will continue to have a serious negative impact on the child and cause the child serious long term psychological harm, at least until he is over the age of 10.

xiv. Should the child have supervised time with the father if unsupervised time is an unacceptable risk?

1. The father’s counsel raised supervision with the expert and the expert agreed that if the parent has something beneficial to contribute but the child cannot transition safely between the parents “…then supervised contact provides the opportunity for identity benefits”. 

2. The expert stated that the benefits of supervised time on an ongoing “identity” basis, would include the child not feeling abandoned, having an opportunity to assess the other parent themselves other than through the filter of the resident parent’s eyes, and avoid the child fantasising about the good absent parent and demonising the resident parent and so damaging the relationship with the resident parent, in this case with the mother.

3. Whilst the mother and the ICL did not support this, the expert’s evidence was in my view supportive of this as a way to ameliorate the negative impacts to the child if he is not to spend time with the father.

4. In this context the expert did not consider paternal grandmother would be able to supervise because the father’s conduct was “characterological” and did not accept that the paternal grandmother would necessarily be a moderating factor.

5. The expert also agreed, as part of identity contact, that it would be good for the child to receive cards and birthday presents, which could be monitored and censored by the mother as necessary.

xv. Should the child have separate time with the paternal grandmother?

1. The mother gave evidence that she would maintain a relationship with the paternal grandmother separate to the relationship with the father.  However, no orders were sought.

xvi. What should the child be told?

1. The expert recommended that a child psychologist or family consultant would need to be instructed by the ICL if possible, or the mother, to inform the child in an age appropriate way that because the mother and the father cannot agree on what should happen a Judge has made a decision and this is the decision. 

2. It was also recommended that the mother receive help to help the child, including from J Family Services where the child had been attending and from the mother’s psychologist. 

4: Summary and conclusion of factual findings

1. I accept that the child has the behavioural difficulties identified by the parties and the expert. 

2. For the reasons set out above, absent any alternative explanation, and noting the video evidence which gives great weight to the argument, I find that the cause of the child’s behavioural difficulties is the father’s interactions with the child.

3. I am comfortably satisfied that many of these interactions are likely to have been of a kind demonstrated in the video, not only in respect of the questioning of the child about sexual abuse allegations, but in terms of being interactions which deal with the child in terms of the father’s emotional needs including the father’s motivation from the conflict with the mother over the child, and without thought for the child’s needs or their impact on the child.  I find that the interactions were probably lacking in empathy or any attempt to understand the mind or needs of the child.

4. For the reasons given above I accept that the sexual abuse allegation was not maliciously fabricated and was genuine though wrongly held.  I accept the expert’s opinion that the father’s conduct demonstrated that the father had an over-valued belief. 

5. I accept her opinion that such beliefs are resistant to proof.  This was confirmed by the father’s inability to state in response to the Court’s questions that he no longer believed the child had been sexually abused.  I am comfortably satisfied that the father continues to hold the over-valued belief that the child was sexually abused and that this belief will remain resistant to contrary evidence.

6. I accept the expert’s reasoning for, and find that, the father’s view of the child are likely to be a consequence of characterological aspects of the father’s personality and therefore unlikely to change without significant assistance.  In that regard I do not accept the father’s evidence in his second affidavit that he is going to or is likely to change.  I reject that evidence in part because I do not accept his evidence in that same short affidavit that he no longer believes the child was sexually abused which goes to credit, and partly because the inability to change the over-valued belief which has been demonstrated to be wrong indicates a psychological resistance to such change.

7. I find that in addition to the observed behaviour problems the child has shown and the observed impact on schooling, the ongoing effects of interacting with the father is likely to continue these behavioural problems and adversely affect his psychological well-being, attachment to the mother, psychological development, future capacity to form and maintain relationships, and educational attainment as outlined by the expert.

8. Consequently I find that if the child has unsupervised time with the father he will suffer significant psychological harm.

9. I also find that the termination of time with and contact with the father will cause the child emotional distress, and even if handled well will likely cause him some ongoing grief and possibly feelings of reduced self-esteem.

10. I find that it is not possible to say, at this stage, at what age if ever the child will be psychologically able to cope with unsupervised time with the father without suffering the identified harm.

11. In making these findings I have in mind the provisions of s.140 of the Evidence Act 1995 (Cth) and the requirement for comfortable satisfaction in relation to many of these issues given the subject matter and gravity of the issues. See Briginshaw v Briginshaw (1938) 60 CLR 336.

5:  The legal issues

1. Each party cited and relied upon M & M (1988) 166 CLR and W & W [2005] FamCA 892.

2. Given the factual findings I have made there is a risk of psychological harm and serious loss if the child spends unsupervised time with the father, and also if he does not.  There is no good outcome for the child.  The question is what is the least worst outcome.

3. Balancing these risks, I am comfortably satisfied that there is an unacceptable risk to the child in spending unsupervised time with the father and that the harm he is likely to suffer from spending time with the father greatly outweighs the harm he is likely to suffer from terminating his time and contact with the father.

4. I am comfortably satisfied that supervision will not alleviate this problem if the child spends fortnightly or even only monthly time with the father.

5. However, I do accept the expert’s evidence that there could be benefits to the child in 4 identity visits per year, and while I understand the opposition of the mother and the ICL to that course, I am satisfied that allowing this will reduce, somewhat, the risks to the child of the sudden loss of the relationship and that the risks of maintaining this level of contact with the father is outweighed by the reduction in risks to the child of the complete termination of the relationship.

6. While I consider that it would be in the child’s interests to maintain a relationship with the paternal grandmother, the risk of the father intruding on unsupervised visits is too great.  The mother is free to separately arrange such time on such terms as the mother considers safe and appropriate, and the paternal grandmother is free to visit the child at the father’s identity visits.

6: Best interests of the children

1. The paramount consideration is the children’s best interests taking into consideration the factors set out in s.60CC.

i. Primary considerations

1. The two primary considerations, in order of weight, are the need to protect the child from physical or psychological harm or being subjected or exposed to abuse, neglect or family violence, and the benefits to the child of having a meaningful relationship with both parents.

2. This is the fundamental weighing exercise that the Court has had to engage in in this case.  The legislation mandates that the protection of the child from psychological harm is to be given priority over the benefits to the child of having a meaningful relationship with both parents.

3. For the reasons set out in detail above I have come to the conclusion that the child is at risk of suffering from a form of psychological abuse and harm which will likely cause substantial ongoing deleterious effects on his psychological wellbeing and development, and on his likely future educational and social outcomes, if he has unsupervised time with the father. 

4. The statute mandates that the requirement to protect the child from this harm be given greater weight than the benefits to the child of a meaningful relationship with the father.  The evidence in this case results in the same conclusion.

5. For this reason, and the reasons set out above, I will make orders in line with the conclusions set out above.

ii. Additional considerations

1. The additional considerations are considered below:

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

1. The child is too young to have views on the issue which wold be given any weight.

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

1. The child has a loving relationship with each parent and the grandmothers.  The nature of the relationship between the father and the child resulting in an insecure attachment, and the adverse effects of that relationship on the child’s attachment to the mother and his behaviour is considered in detail above.

c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child;

1. Each parent has taken the opportunity, when available, to participate in making decisions about major long-term issues and to spend time with and communicate with the child.

ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. While the mother has raised issues as between the parties concerning financial matters there is no suggestion that either parent has relevantly failed to fulfil their obligation to maintain the child.

d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: either of his or her parents; or; any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. This is considered in detail above. 

2. The likely effect on the child of the proposed orders, which involve a significant change in his circumstances, will on the one hand likely have major negative impacts on the child’s capacity to have a meaningful relationship with the father, and consequently on the child’s emotional functioning given the deep bond of love he shares with the father and the deep wound and grief this will cause and the risk of feelings of abandonment and low self-esteem.  

3. On the other hand it is likely that there will be a very significant reduction in the psychological stresses experienced by the child in the context of this high-conflict parenting relationship and the provision of an environment of stability which will allow the child the chance to learn to trust people, to develop secure or at least less insecure attachments now and across his life, to have a chance of developing more normally emotionally, and of achieving such educational attainments as he otherwise has the capacity to.

4. This change will remove the child from the risk of emotional abuse or neglect brought about by the father’s focus on his own rather than the child’s psychological needs, and the father’s probable ongoing false beliefs that the child has been sexually abused in the mother’s home, which the child might come to believe is true, and that the child’s poor behaviour is a consequence of the mother’s poor parenting rather than his own poor parenting. 

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;

1. This is not a relevant factor on the evidence before the Court.

f)  the capacity of each of the child's parents; and 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;

1. Each parent is able to provide for the child’s physical safety and needs and to generally provide for the child, subject and except for the father’s incapacity to provide for the child’s psychological needs and safe development for the reasons outlined in detail above.

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;

1. There are no aspects of the maturity, sex, lifestyle, background, culture or traditions of either parent or of the child that are relevant, excepting the extent to which the father’s poor parenting capacity is considered an issue of “maturity” and that is dealt with in detail above.

h) if the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right;

1. This is not relevant.

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

1. This is dealt with in detail above.  While both parents love the child and genuinely want the best for him, the father’s self-focussed, rather than child-focussed, view of the child’s behaviour and false beliefs about the child being sexually abused, reflect an attitude towards the child which creates an unacceptable risk for the child as outlined above.

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

1. This is dealt with in detail above when considering the mother’s allegations of controlling and coercive behaviour.

k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter;

1. This is not relevant.

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;

1. There cannot be any guarantee on this issue, however, this order should minimise contact the likelihood of further litigation.

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

1. There are no factors in addition to those dealt with above that are relevant.

7: Parental responsibility

1. Does the presumption apply or has it been rebutted? (s.65DA)

1. The parties have agreed and the Court will order that the mother have sole parental responsibility.

1. If there is equal shared parental responsibility is equal time in the child’s best interest, and if not is substantial and significant time in the child’s best interests?

1. There is no equal shared parental responsibility. 

1. Is this substantial and significant time? I.e. Does the time include both days that fall on weekends and holidays and days that do not, and, time that allows the parent to be involved in the child’s daily routine and occasions and events of particular significance to the child and to the parent? (s.65DAA)

1. There is no substantial or significant time for the reasons set out above.

1. Is it reasonably practicable?

1. There is no issue of practicability.

1. How far apart do the parents live from each other?

1. The parties live relatively close to each other.

1. What is the parent’s current and future capacity to implement an arrangement for the child to spend equal or substantial and significant time with each parent?

1. This is not relevant.

1. What impact would this have on the child?

1. This is not relevant.

1. Are there any other matters that should be considered?

1. The other relevant matters are considered above.

1. If neither equal nor substantial and significant time is in the child’s best interests or is not reasonably practicable what time should the child spend with each parent?

1. This is dealt with in detail above.

8: Costs

1. Any application in respect of costs is to be made within 28 days. 

I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Judge B Smith

Date: 15 November 2019