Carey and Dolan

FAMILY COURT OF AUSTRALIA

CAREY & DOLAN

[2010] FamCA 725

FAMILY LAW – CHILDREN – Best interests – Substantial time and significant time – With whom a child lives and spends time FAMILY LAW – CHILD ABUSE – Allegation of sexual abuse
APPLICANT:	Mr Carey

RESPONDENT:

Ms Dolan

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

FILE NUMBER:

NCC

947

2009

DATE DELIVERED:

17 August 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

13, 14, 15 and 16 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cotter-Moroz

SOLICITOR FOR THE APPLICANT:

The Family Law Firm

COUNSEL FOR THE RESPONDENT:

Mr Bates

SOLICITOR FOR THE RESPONDENT:

Barbara Garrick & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Gorton
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid Commission of NSW

Orders

That all previous parenting orders in relation to the child, J born … March 2001 (“the child”) be and hereby are discharged.
That the mother have sole parental responsibility for the child.
That the child live with the mother.
4.1 That before making a decision in relation to a major long term issue affecting the child, including but not limited to the high school he is to attend, the mother shall:-
(a)notify the father in writing of the proposal or proposals and invite a response from the father within a stated time;
(b)take into account the response of the father received within time;
4.2That the mother shall otherwise keep the father advised in a timely way of all matters relating to the child’s health, education and overall welfare.
That each party shall take all necessary steps to ensure that the child spends time with his father as follows:-
(a)for a period of not less than six (6) months and not more than twelve (12) months for one weekend in each calendar month and failing agreement otherwise the first weekend of each calendar month from Saturday 9.00am to Sunday 6.00 pm and to that end the mother or her nominee shall deliver the child to the father or his nominee inside W Police station at the commencement of the child’s time with the father and the father or his nominee shall return the child to the mother or her nominee inside W Police Station at the conclusion of that time;
(b)thereafter and subject to the father having complied with orders 13, 17 and 19 herein:-
(i)each alternate weekend from after school Friday until Sunday 6.00pm and to that end the father or his nominee shall collect the child from school on Friday afternoon at the commencement of each period of time and the father or his nominee shall deliver the child to a place in Newcastle agreed between the parties in writing or failing agreement to W Police Station at the conclusion of the child’s time with the father from which police the mother or her nominee shall collect the child; and
(ii)at such other times including periods of time during school holidays as are agreed between the parties but failing agreement otherwise for four (4) days in each school term holiday and for two (2) weeks in the Christmas school holidays each year.
That the mother shall take all such steps and sign any necessary documents to authorise the child’s school to provide to the father all documents relating to the child’s progress at school and welfare including but not limited to school reports, reports on school progress, forms for obtaining school photographs and school newsletters. In the event that there is any cost associated with receiving that material the cost shall be the father’s.
That each party as soon as practicable telephone the other upon the happening of any of the following:-
(a)the child becoming seriously ill;
(b)the child being hospitalised;
(c)the child being involved in an accident requiring medical attention.
That each party must advise the other of any change of residential address, landline telephone number and mobile telephone number within twenty-four (24) hours of such change.
That each of the parties is restrained from denigrating the other party or members of the other parties’ household and extended family within the hearing of or presence of the child and must use their best endeavours to ensure that other persons do not denigrate the other party or members of the other parties’ household or extended family within in the hearing of or presence of the child.
That each party is restrained from discussing with the child or any other person in the child’s presence, the allegations of abuse raised by the father in these proceedings or any of the issues arising from these proceedings and must use their best endeavours to ensure that other persons do not discuss with the child or in the child’s presence the allegations of abuse or any issue arising from these proceedings and if necessary remove the child from the presence of any person who initiates such discussion.
That the father is restrained from approaching the child at school other than in accordance with these orders.
That the father shall facilitate the child’s involvement in soccer during the winter months for so long as the child plays with a team at the weekend and the father shall be at liberty to attend the child’s soccer matches.
That the parties are to attend separately upon a counsellor and must within 28 days of the dates of these orders:-
(a)contact the manager Child Dispute Services at Newcastle Registry of the Family Court of Australia for the recommendation of a counsellor;
(b)contact the recommended counsellor and make the first available appointment with that counsellor;
(c)promptly provide the other parent and the Independent Children’s Lawyer with details (name, address and telephone number) of that counsellor;
(d)prior to the first appointment, provide the counsellor with copies of the two reports of Dr R dated 30 November 2009 and 28 June 2010 together with a copy of these orders;
(e)attend upon the counsellor for so long as the counsellor considers necessary and/or recommends;
(f)comply with the counsellor’s reasonable directions including but not limited to attending parenting after separation courses;
(g)authorise the counsellor to advise the Independent Children’s Lawyer within six (6) months of the date of these orders that:-
(i)the counselling relationship has been established;
(ii)the counsellor has been provided with a copy of the two reports and orders referred to in sub paragraph 13 (d);
(iii)the counselling is ongoing or the circumstances of its conclusion
and in the case of the father authorise the counsellor to speak to and relay relevant information to the father’s treating psychiatrist.
That the parties shall provide the reports by Dr R for reading by the following persons:
(a)the maternal grandparents;
(b)the paternal grandmother; and
(c)the father’s wife.
That the appointment of the Independent Children’s Lawyer be extended for a period of twelve (12) months in order to the facilitate the following:-
(a)the explanation of the orders to the child;
(b)the receipt of the confirmation from the counsellors engaged by each party referred to in subparagraph 13(g) herein;
(c)to advise each of the parties that either counselling has been established and has been ongoing for six (6) months or otherwise satisfactorily concluded; or
(d)to advise that there has been no confirmation of counselling established and ongoing.
That in the event that confirmation is received by the Independent Children’s Lawyer that counselling has been established and has been ongoing for six (6) months or otherwise satisfactorily concluded then the father shall have contact with the child pursuant to order 5(b).
17.1 That the father must within fourteen (14) days consult his general practitioner and seek a referral to a psychiatrist for the purposes hereafter in this order provided.
17.2Upon referral to the psychiatrist as provided in order 17.1 the father must for a period of at least twelve (12) months thereafter seek and accept and participate in treatment as the psychiatrist and his general practitioner shall recommend and provide to the father:-
17.2.1to deal with any disorders such as anxiety or depression that the psychiatrist may diagnose and to address the fears with regard to the welfare of the child that caused the father to commence these proceedings (the “fears”):
That the father must cooperate with his general practitioner and with the psychiatrist in seeking and accepting all treatment and professional help recommended and made available to him in the course of and as a result of the treatment he shall receive pursuant to the preceding order for so long as those treating professionals shall recommend he do so.
That the father must within two (2) months of this date either directly or through his solicitors give to the Independent Children’s Lawyer written notice of the identity, location and contact details of the general practitioner he shall consult and the psychiatrist to whom he shall be referred pursuant to this order AND he must give to those treating professionals written authority to operate for a period of twelve (12) months from this date AND TO PROVIDE to the Independent Children’s Lawyer such information as that lawyer shall request with regard to the nature and extent of the father’s compliance with this order and the treatment provided to him.
That the father must provide to his medical practitioner and to the psychiatrist a copy of these orders together with copies of the reports of Dr R tendered in evidence in these proceedings.
That until the father has had his first consultation with the psychiatrist, the father and his wife are and each of them is restrained from disclosing any concerns the father may have (as defined in order 17.2.1) to any person or agency other than the father’s lawyers, the psychiatrist, his general practitioner, his wife without first consulting the Independent Children’s Lawyer and giving consideration to any views that lawyer is prepared to express on those matters.
That the parties must each seek to have the treating psychiatrist and counsellor of the father and the mother’s counsellor consult with each other for the purpose of helping the parties deal with and put behind them the anxieties, tensions and misunderstandings that caused them to disagree on the child’s parenting and to improve their relationship and future cooperative parenting of the child.
That the child have telephone communication each Wednesday with the father at any time between 7.00 and 7.30 pm with the father to place the call and the mother to assist and encourage the child to receive the call in privacy.
That each parent is to use their best endeavours to arrange for the child’s grandparents to communicate with each other as recommended in Dr R’s first report.
The father is restrained from taking the child to any counselling, therapy, psychologist, or any other provider of therapeutic services without the prior written consent of the mother.

NOTATION

That the father attended and completed post separation parenting sessions held in April/May 2010 at Men and Family Relationship Service.
The mother gave evidence that she was seeing Ms C, a counsellor with honours in psychology, and that she was intending to continue to consult Ms C and in the event that she does so that will be sufficient compliance with orders 13(a) and (b).

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 947 of 2009

MR CAREY

Applicant

And

MS DOLAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

In this matter the applicant is the father, Mr Carey, born in 1968 (“the father”). The respondent is the mother, Ms Doaln, born in 1971 (“the mother”).
The parties began living together in January 1999 and married in April 2000. They had one child, J, born in March 2001.
When the child was approximately nine months old the parties separated and the child lived with his father and paternal grandmother at S for a period of time.
On 9 December 2003 orders were made by a Federal Magistrate that the child live with his mother and spend time with his father in a pattern that increased to alternate weekends after the child started school.
In 2005 the father met his current wife, Mrs Carey, and they began living together in December 2005. They subsequently married in April 2006.
The proceedings commenced in April 2009 with an application by the father for sole parental responsibility and residence of the child with him and an order restraining the mother from allowing the child to come into contact with his maternal grandparents.
The reason for this application and the events that led up to it became clear during the course of this four day hearing. Towards the end of 2006 the child had said to his father words to the effect “Poppy showers with me.”
The evidence of the father was that he had felt immediate concern about that fact for reasons which were not entirely clear. He asked that the practice stop and he concedes that soon after in a confrontation with the mother and maternal grandfather he called the maternal grandfather a paedophile. The child referred to having soap in his ears and not liking showers with his grandfather.
It became clear that the father became ever increasingly agitated and vigilant about enquiring with the child as to events in the mother’s household.
The mother filed a successful recovery application for the child in November 2006.
The mother filed an application to vary the current orders in February 2007 and she subsequently filed an amended application seeking changeovers at W Police Station.
By May 2007 the child and his mother were living with the maternal grandparents as she had a new job and her parents were helping to assist in the care of the child.
On 30 May 2007 orders were made in the Federal Magistrates Court that the child live with his mother and spend every second weekend with his father and half school holidays.
In June 2007 the mother changed the child’s school.
In 2009 the father’s concern about the child was heightened. On 9 April 2009 the father’s wife, the child’s stepmother, reported to the Department of Community Services (‘DoCs”) that the child was pale, listless and withdrawn. The father said that the child told him “[the maternal grandfather] showers me, washes me all over, says he can get into the shower at any time.” The child also told his father that the maternal grandfather was not currently showering with him.
On 15 April 2009 the stepmother made a further call to the DoCs.
On 16 April 2009 the child told his father that he had to wash the maternal grandfather’s penis. The father reported the matter to a Detective Sergeant F at S Police Station and an AVO was taken out for the protection of the child.
The father advised the mother that he would not be returning the child to her care. The father took the child to see his doctor, Dr H, who referred the child for counselling with Dr D.
On 23 April 2009 the child was interviewed by the JIRT team. JIRT advised that they were going to interview the maternal grandfather and the child in his home environment. The JIRT team heard no disclosure from the child and advised that they would be taking no further steps.
On 29 April 2009 the Federal Magistrates Court made an order restraining the mother from bringing the child into contact with the maternal grandparents and at that time an Independent Children’s Lawyer was appointed.
In June 2009 Ms O, the former principal of the school the child attended, disclosed that the child had stabbed another child with a pair of scissors. Shortly thereafter in June the father took the child to see a psychologist, Dr S. He encouraged the child to make notes about anything that happened between him and his grandfather. One of the notes the child ultimately made was “[the child] is dead”.
The father continued to take the child to see Dr S who received from Dr D a drawing that the child had made of himself and his maternal grandfather in the shower.
In July 2009 a letter from the child’s school was sent to the mother advising her that the child had admitted to breaking two toilet seats at school. A letter also went out from the school to the father informing him that the child had been hitting others in class continuously and hurting his peers, often when unprovoked. The child’s behaviour was becoming, on the evidence available from the school, increasingly disruptive and aggressive.
In February 2010 the mother filed an amended response seeking sole parental responsibility and more limited time between the child and the father.
By the time of hearing the father was continuing to express strong concern that there had been sexually inappropriate conduct by the maternal grandfather towards the child, however, his evidence was that he thought that the conduct had stopped and that he was ready to move forward.

DOCUMENTS RELIED ON

The documents relied on by the father are:
a)initiating application filed 28 April 2009;
b)notice of child abuse or family violence filed 4 May 2009;
c)affidavit of the father sworn 1 April 2010;
d)affidavit of the father sworn 24 August 2009;
e)affidavit of the father sworn 10 July 2009;
f)affidavit of the father sworn 28 April 2009
g)affidavit of the stepmother sworn 9 July 2009; and
h)affidavit of the stepmother sworn 28 April 2009.
The documents relied on by the mother are:
a)amended response to initiating application filed 19 February 2010;
b)affidavit of the mother sworn 29 March 2010;
c)affidavit of the maternal grandmother sworn 23 March 2010; and
d)affidavit of the paternal grandfather sworn 23 March 2010.
The Independent Children’s Lawyer relies on the two reports by Dr R dated 30 November 2009 and 28 June 2010.

ORDERS SOUGHT

The mother relied on the orders in her amended response filed 19 February 2010 as follows:
“1. All existing Orders be discharged.
2.The child [J] born […] March 2001 live with the mother.
3.The mother have sole parental responsibility for making decisions about the long term care, welfare and development of the child.
4.The child spend time with and communicate with the father on the 1^st weekend of each calendar month from Saturday at 9.00 am to Sunday at 6.00 pm.
5.The mother deliver the child to the father inside [W] Police Station at the commencement of the child’s time with the father and the father return the child to the mother inside [W] Police Station at the conclusion of that time.
6.For implementing these arrangements each party shall be at liberty to permit another adult well known to the child to collect and/or deliver the child.
7.The father must not approach [the child], including at [the child’s] school, other than in accordance with these Orders.
8.The father facilitate [the child’s] involvement in soccer during the winter months and the father be at liberty to attend [the child’s] soccer matches.
9.The mother sign all consents to enable the child’s school(s) to provide to the father on a regular basis and at his expense copies of all school reports, any other reports on school progress and behavioural issues and other school circulars in relation to the child.
10.Each party as soon as practicable telephone the other upon the happening of any of the following:
10.1the child becoming seriously ill;
10.2the child being hospitalised;
10.3the child becoming involved in an accident requiring medical attention.
11.Each party advise the other of any change of residential address, landline telephone number and mobile telephone number within 24 hours of such change.
12.The parties must not denigrate the other party or members of the other party’s family or friends to, or within hearing of, [the child] and must use their best endeavours to ensure that other persons do not denigrate the other party or members of the other party’s family or friends to, or within the hearing of, [the child].
13.The parties must not discuss with [the child] or, in [the child’s] presence, as to whether [the child] has been abused by the other party or members of the other party’s family or friends and must use their best endeavours to ensure that other persons do not discuss with [the child] or, in [the child’s] presence, as to whether [the child] has been abused by the other party or members of the other party’s family or friends.
14.The parties must not discuss with [the child] or, in [the child’s] presence, [the child’s] wishes as to with whom [the child] wishes to live and must use their best endeavours to ensure that other persons do not discuss with [the child] or, in [the child’s] presence, [the child’s] wishes as to with whom [the child] wishes to live.”

The Father

The father changed his position, conceded that residence remain with the mother and sought orders as set out in a draft Minute of Order handed up at the conclusion of the evidence and set out below:-
“1.Parental responsibility for [the child]
1.1[Mr Carey] (the “father”) and [Ms Dolan] (the “mother”) shall have equal shared parental responsibility for [J], who was born on […] March 2001 (“[the child]”).
1.2Notwithstanding order 1.1 each of the mother and the father (together the “parents”) has sole parental responsibility for the day to day care of [the child] when, pursuant to this order, he is residing with or spending time with that parent.
2.With whom [the child] shall live
2.1[The child] shall live with his mother.
3.Variations to the arrangements hereby ordered
3.1The parents may by express agreement signed by them both (and not otherwise) make additional or varied arrangements for [the child] to spend time with his father (“variations”).
3.2Variations shall cease to apply if either parent shall so notify the other parent in writing, whereupon the parents must resume full and precise compliance with this order.
4.[The child] – spending time with his father – short term
4.1During the period until start of school term 1 in the year 2001, [the child] must spend time with his father as follows:-
4.1.1from after school Friday until 6.00 pm Sunday on the following weekends:-
(a)the weekend starting on Friday 30 July 2010;
(b)the weekend starting on Friday 20 August 2010;
(c)the weekend starting on Friday 10 September 2010;
4.1.2for 4 days during the school holidays following the end of Term 3/2010, starting at 9.00 am on ( ) September/October 2010 and ending at 6.00 pm on ( ) September/October 2010;
4.1.3from after school Friday until 6.00 pm Sunday on the following weekends:-
(a)      the weekend starting on Friday 15 October 2010;
(b)      the weekend starting on Friday 5 November 2010;
(c)      the weekend starting on Friday 26 November 2010;
4.1.4for two periods during the Christmas school holidays that start in December 2010, each of 7 days commencing at 5.00 pm on a Friday and ending at the same time the following Friday, the mother to nominate the date on which each such period is to start by letter or email sent so as to reach the father no later than the last day of school term 4/2010.
5.[The child] – spending time with his father – long term
5.1The spending time arrangements hereafter set forth shall come into force from start of school term 1 in the year 2011;
5.2during school term, [the child] shall spend time with his father every second weekend from after school Friday until start of school Monday;
5.3during NSW gazetted school holidays following terms 1, 2 and 3 each year, [the child] shall spend time with his father
5.3.1in even numbered years from 9.00 am on the first Saturday of the holiday period until 6.00 pm on the middle Saturday of the holiday; and
5.3.2in odd numbered years from 6.00 pm on the middle Saturday of the holiday until 6.00 pm on the last Sunday of the holiday;
5.4during the Christmas school holidays each year, [the child] shall spend time with his father:-
5.4.1in holidays that start in an even numbered year from 9.00 am on the first Saturday of the holiday until 6.00 pm on the 7^th day of January following; and
5.4.2in holidays that start in odd numbered years from 9.00 am on the 7^th day of January until 5.00 pm on the last Sunday of the holiday.
6.Special Occasions
6.1if Mother’s Day falls on a weekend when [the child] is scheduled to be with his father pursuant to this order, the father must return [the child] to his mother at 5.00 pm on the Saturday of the Mother’s Day weekend;
6.2if Father’s Day falls on a weekend when [the child] is not scheduled to be with the father pursuant to this order, he may collect [the child] from the mother at 5.00 pm on the Saturday of that weekend, in which case he must deliver the child to school at start of school on the following Monday;
6.3in even numbered years, if the father shall so elect and so notify the mother before the end of school term 4, he may collect [the child] from the mother at 10.00 am on Christmas Eve, in which case he must return the child to his mother’s home at 3.00 pm on Christmas Day;
6.4in odd numbered years, if the mother shall so elect and so notify the father before the end of the school term 4, she may collect [the child] from his father’s home at 10.00 am on Christmas Eve, in which case she must return the child to his father’s home at 3.00 pm on Christmas Day.
7.Other matters
7.1for the purposes of [the child’s] time with the father hereby ordered, changeover shall occur at [the child’s] school or at the mother’s resident if not a school day;
7.2the parents must keep each other informed of –
7.2.1their respective residential addresses;
7.2.2a land telephone number at which they can each be contacted at all hours; and
7.2.3any mobile telephone numbers and/or email addresses that each of them has available from time to time;
And they must each notify the other in writing or by email or text message of any change in such particulars within 48 hours of change
7.3if [the child] shall suffer an accident, injury or illness that requires medical or hospital attention on other than a routine or isolated basis when he is with either parent, that parent must provide details of that event to the other parent as soon as possible;
7.4each of the parents is entitled to obtain directly from any educational, health or welfare agency or professional involved in the care of [the child] all information regarding his education, health and welfare and for that purpose each parent must keep the other informed of the names and contact details of all education, health or welfare agencies and professionals so involved in the welfare of [the child];
7.5should it be necessary for either parent to secure the consent of the other parent to the provision of information pursuant to the preceding order, he or she may post or deliver the form of authority to the other parent and that other parent must sign and return to the other parent any form reasonably and necessarily submitted to him or her for that purpose.
8.The father – seeking treatment
8.1the father must within 14 days –
8.1.1provide to his general practitioner a copy of this order and of the family reports accepted into evidence in these proceedings;
8.1.2consult his general practitioner and seek a referral to a psychiatrist (the “psychiatrist”) for the purposes hereafter in this order provided
8.2upon referral to the psychiatrist as provided in order 8.1.2 the father must for a period of at least 12 months thereafter seek and accept and participate in treatment as the psychiatrist and his general practitioner shall recommend and provide to the father –
8.2.1to deal with any disorders such as anxiety or depression that the psychiatrist may diagnose and consider to have arisen from or otherwise be related to the fears with regard to the welfare of [the child] that caused the father to commence these proceedings (the “fears”);
8.2.2without limiting the generality of order 8.2.1 treatment intended to deal with and alleviate –
(a)any fears that shall so concern the father in the future;
(b)strategies and counselling designed to assist the father in dealing with any such fears in a balanced, reasonable and constructive manner, should they arise in the future;
(c)strategies and counselling designed to ensure that the father, should he develop such fears in the future, will seek professional help in assessing and dealing with such concerns in future, he will seek professional advice and help from a counselling service qualified to assist parties who entertain such fears to the intent that he will not in future take active steps in relation to such fears without first seeking all professional help reasonably available SO THAT any steps he does take are reasonable, necessary and taken only after the father has sought and received professional advice and counselling pursuant to this order.
9.The father must cooperate with his general practitioner and with the psychiatrist in seeking and accepting all treatment and professional help recommended and made available to him in the course of and as a result of the treatment he shall receive pursuant to the preceding order FOR SO LONG as those treating professionals shall recommend he do so.
10.The father must within 2 months of this date either directly or through his solicitors give to the Independent Children’s Lawyer written notice of the identity, location and contact details of the general practitioner he shall consult and the psychiatrist to whom he shall be referred pursuant to this order AND he must give to those treating professionals written authority to operate for a period of 12 months from this date TO PROVIDE to the Independent Children’s Lawyer such information as that lawyer shall request with regard to the nature and extent of the father’s compliance with this order and the treatment provided to him.
11.The father must provide to his medical practitioner and to the psychiatrist a copy of this order together with copies of the reports of Dr [R] tendered in evidence in these proceedings.
12.The appointment of the Independent Children’s Lawyer is extended to operate for a period of …months from the date hereof.
13.Until the father has had his first consultation with the psychiatrist, the father and his wife are and each of them is restrained from disclosing any concerns the father may have (as defined in order 8.2.1) to any person or agency other than the father’s lawyers, the psychiatrist, his general practitioner, his wife without first consulting the Independent Children’s Lawyer and given consideration to any views that lawyer is prepared to expressed on those matters.
14.The mother must within 14 days provide to her counsellor (the “mother’s counsellor”) a copy of this order and of the family reports received into evidence in these proceedings and thereafter seek and accept and participate in counselling for a period of not less than 12 months for the purpose of seeking to understand and accept the fears referred to in order 8.2.1 that the father says caused him to institute these proceedings.
15.The parents must each seek to have the psychiatrist and the mother’s counsellor consult with each other for the purpose of helping the parties deal with and put behind them the anxieties, tensions and misunderstandings that caused them to disagree on [the child’s] parenting and to improve their relationship and future cooperative parenting of [the child].
16.The parties are and each of them is restrained from –
16.1denigrating the other parent and any member of that parent’s household or family in the hearing or presence of [the child] and from permitting any other person to do so; and
16.2discussing these proceedings with or in the hearing or presence of [the child].
17.The mother must attend a parenting after separation course recommended by the director of court counselling.
18.Both parents must engage in and complete any further counselling or parenting or similar courses recommended by the director of court counselling.
AND THE COURT NOTES that the father attended and completed post separation parenting sessions held in April/May 2010 at Men and Family Relationships Services.”
The Independent Children’s Lawyer
The Independent Children’s Lawyer initially reserved his position and subsequently handed up a Minute of Order at the conclusion of the evidence seeking orders as set out below:
“1.That all previous parenting orders in relation to the child [J] (“[the child]”) born […] March 2001
2.That the mother have sole parental responsibility for [the child].
3.That [the child] live with the mother.
4.That [the child] spend time with the father –
A.as agreed between the parties;
B.failing agreement each alternate Saturday from 10.00 am to 4.00 pm or alternatively on the weekend containing the first Sunday of the month, from 9.00 am Saturday until 6.00 pm Sunday.
5.Time [the child] spends with the father to be implemented by the parents (or their nominees) delivering [the child] to the other parent (or their nominee) at McDonald’s Family Restaurant [X].
6.That [the child] have telephone communication with the parent he is not with on Wednesday between 7.00 pm and 7.30 pm to be implemented by the parent he is not with calling the other parent’s landline number.
7.Neither parent denigrate the other or members of the other’s family or household to or in the presence of [the child] and forthwith remove [the child] from the presence of anyone doing so.
8.Neither parent use any illicit substance while [the child] is in their care or for 24 hours before [the child] comes into their care.
9.Neither parent physically punish [the child] or allow any other person to do so.
10.A. Within 48 hours of these orders the parents contact the manager of child dispute services in this Registry for a referral to a counsellor for counselling, joint or separate, designed to address their communication. Such counselling to include at the counsellor’s discretion [the stepmother];
B.contact the recommended counsellor within 4 days and undertake such counselling as soon as possible;
C.prior to the first appointment provide to the counsellor a copy of both of Dr [R’s] reports;
D.comply with the counsellor’s directions and recommendations;
E.if separate counselling, each pay their own costs; or
F.if it be joint counselling each pay ½ of the costs.
11.Each parent is to use their best endeavours to arrange for [the child’s] grandparents to communicate with each other as recommended in Dr [R’s] first report.
12.Each parent give the other not less than 7 days notice prior to any change of address.
13.Each parent inform the other of any change to their landline telephone number not less than at 5.00 pm on Monday immediately after such change.
14.Within 3 business days of the making of these orders the mother to contact the Legal Aid Commission of NSW at Newcastle and make an appointment for the Independent Children’s Lawyer to explain these orders to [the child], and ensure [the child] attend the appointment.
15.Each parent have leave to provide copies of both of Dr [R’s] reports to any treating psychologist, psychiatrist or counsellor that they or [the child] may attend.
16.Neither parent is to discuss with [the child] the past allegations of sexual abuse against the maternal grandfather and forthwith remove him from the presence of anyone else who does so.

ISSUES

The issues for determination were:-
a)whether the child had been exposed to sexual abuse of any kind;
b)the sharing of parental responsibility; and
c)residence and arrangements for the father to spend time with the child.
By the conclusion of the evidence the issue of exposure to sexual abuse was resolved by the father through his counsel stating that he accepted that there had been no sexual abuse of the child by the maternal grandfather and no sexual misconduct at all.

EVIDENCE

The Father

The father gave evidence which confirmed that he had been actively searching for evidence of misconduct by the mother and her parents since 2006. In his first affidavit at 2.24 the father had said:-
“I took [the maternal grandfather] aside and said to him ‘I don’t want you showering with my son.’”
When questioned about his source of knowledge the father said that he had in previous days had a conversation where the child had said to him that “Poppy showers with me”. There was never any explanation for why the father regarded this as a sinister state of events.
From that time on the father kept a record of events involving the child. He made reports to the authorities and complained of the child being left alone and unsupervised and being fed inadequately. He took a photograph of a mark on the child’s buttocks. The child was cross examined by his father on the subject of showering with his grandfather:-
“I tried on several occasions on the way home to bring the subject up again but all [the child] could say was ‘I don’t like it’”
By the next occasion when the child was due to return to his mother after a period of time with the father, the father refused to hand the child over on the basis that the mother was not present personally to accept him. The father said to the maternal grandfather:-
“I’ve told you before I don’t want you showering with my son you paedophile and stop shoving shampoo in his ears that’s what made him sick. You’d better get [the mother] to call me.”
In June 2007 the father attended the child’s school and found out that the mother was transferring the child to a new school.
In March 2009 the father attended the child’s new school and saw the maternal grandfather at the school who took the child home to the grandparents’ house. An angry scene then developed at the grandparents’ house when the father went to their home and insisted on taking the child although it was not a period of time pursuant to the orders.
The father took the child with him and it was at that time that the father had a conversation with the child where the child said that he hated his mother “I hate [the mother] but I hate [the maternal grandmother] more”. This conversation is said to have taken about one hour.
There is a considerable gap in the evidence of the father between the events at the end of 2006 when he said he first learned of the child showering with his grandfather and the events in 2009 when the question of the shower is referred to again in the father’s affidavit. There seems little doubt that there had been regular enquiries by the father of the child throughout this time.
Unfortunately the father convinced himself that the child was being mistreated, not only by his maternal grandfather but by the mother and the maternal grandmother. The pressure on the child to report negative statements about the mother and her parents was considerable.
The father presented as an anxious and agitated person. He held the view that his son had been abused in the past and had been too shy to speak up and tell people. The father told Dr R on 17 May 2010:-
“I am concerned for his safety in my belief.”
What the father did not do was to have a conversation with the mother where there could have been a calm enquiry into why the child had originally complained about the shower. It is quite likely that had the evidence of the mother been given first, the father may not have maintained his position for as long as he did during the hearing. However, it is to his credit that he, having heard all the evidence, conceded that there had been no impropriety of any kind.
What was concerning about the father’s evidence is reflected in the following exchange:-
Q: “You referred to the grandfather as a paedophile.”
A:“Yes. They (the maternal grandparents) have a habit of laughing at me. They have no remorse. They try to intimidate me. They could see I was angry and upset.”
Q:“Things boiled up and boiled over.”
A:“Yes it did.”
I had the impression that the father dwelt on the subject of the child showering with his grandfather and developed considerable anger and desire for action which led to the angry scenes that ensued from time to time.

It seems likely that the father also attributed to the child fears that may have related to the father’s own experience of growing up. The father said this:-
“I am very confused. He rarely speaks nicely of them (the maternal grandparents). I was scared of my father just like [the child] is scared of his grandfather.”
There were times too throughout the evidence when the father apologised for his conduct, for example:-
Q: “What made you say that? (use the word paedophile)”
A: “I did the best I could. I do apologise.”
“I’m sorry for the way I carried on.”
What was notable about the father’s evidence was his failure or inability to discuss with the mother any concerns that he had. For instance, in relation to the bruise which was photographed and became an annexure to the father’s affidavit, the question was posed to the father did he ask the mother what had happened:-
A        “Couldn’t recall.”
Q:       “Why annexure the photograph?”
A:       “That relates to a number of concerns I had.”
Q:       “You should have spoken to the mother.”
A:       “Yes.”
Q:       “Do you believe the mother mistreats [the child] by beating him?”
A:       “No. Not anymore.”
Q:       “You believe she did?”
A:       “I don’t want to believe it.”
The father was both anxious and evasive in this way about his attitude to the mother which is probably a reflection of the huge failure of communication between them.
There is no doubt that the father loves his son very much. However, the evidence revealed that there was something of a companionship relationship rather than a father and son relationship. For instance, the fact that the father would at times allow the child to shower with his clothes on because the child didn’t want to take them off and again when the child reported that his mother had killed his fish he had not taken any step to reassure the child that had that been the case it must have been an accident.
Likewise, there was a certain immaturity in the assertion made by the father that his present wife was equally as important to the child as his own mother because:-
“She’s been there from the beginning.”

The stepmother

Mrs Carey gave evidence which suggested she had fully supported her husband, both in his belief that the child had been sexually abused and his desire to find evidence and to alert the authorities to the situation.
The stepmother took up comments that the child had made about what he had eaten and how he had spent his time as evidence of the kind that her husband was looking for. For instance, the child mentioned that he had a custard tart for dinner. He asserted on 1 July 2009 in a conversation with the stepmother:
[Child]:“I am still sick but [the mother] threw the medicine in the bin and gave me some of hers which she takes.”
Mrs C:“How are you feeling now?”
[Child]:“I’m feeling worse and I’m cold.”
Mrs C:“Are you dressed warmly?”
[Child]:“No, just shorts and a t-shirt. I’ve got something very important to tell dad.”
The stepmother subsequently rang the principal of the school to report her concern about the child’s loss of weight. It was at this time that the child wrote an extensive letter to the school complaining not only about sexual misconduct by his grandfather but that his mother used to give him wine and still does, that his grandfather had hit him with a leather belt. The stepmother, whilst genuinely fond of the child, did not seem to bring objectivity to the situation and was active in pursuing DoCs and the police in response to comments that the child had made.
I have no doubt that the stepmother loves the child but became caught up in the drama in the Coyne household.
The stepmother gave evidence that she no longer wishes to pursue the allegations on the advice from her church and a friend which caused a change of heart:-
“We all have to get on with our lives. We all have to live.”
She acknowledged that the maternal grandfather had been “through the wringer” and asserted that there was no longer a risk.
In trying to assist in the situation the stepmother may have, by taking on a parental role, at times come between the child and his mother. For instance, on 22 April 2009, when the mother rang to speak to the child, the stepmother made a decision that he could not saying “sorry [Ms Dolan], no.” Hopefully in future the stepmother and the mother will be able to have conversations where information about the child is exchanged for his benefit.
Of the 19 notifications on the DoCs by April 2009, somewhere between 6 and 8 of them had been made by the stepmother.

Dr R

Dr R had expressed serious concerns about the father’s capacity to care for the child in both his reports.
In the first report the doctor reflected on the difference between the child seen together with his mother and grandparents and the child seen with his father (page 13):-
“At interview [the child] was seen together with [the mother]. They appeared very happy and relaxed. [The child] was chirpy. [The child] said he was a cub and enjoyed going to Scouts.”
Then when the maternal grandparents joined the interview Dr R reports this:

“[The child] was observably thrilled to see his grandparents. He was very happy that they joined the interview. The grandparents were very pleased to see him. I asked [the child] if he wanted to say anything to his Nan and pop. He said ‘I love them’. They looked very pleased. [The maternal grandmother] said ‘I know you’ve done well at Scouts.’”

Later in the interview the doctor records the child as saying to his grandparents spontaneously:-
“I love them heaps.”
I asked the child if anything bad had happened between him and his grandparents. He said “No.”
In contrast, when the child was seen with his father, the doctor records the following observations (page 14):-
“[The child] and [the father] were seen together. [The child] and his father were laughing like children together. They were playing hi fives and interacting in a very childlike but affectionate way.”
And further on (page 15)
“I asked [the child] if he wanted to see any changes in his life. He said ‘I want a normal life. I never want to see [the maternal grandmother], [the maternal grandfather] or [the mother] ever again.’ He said that he loved his father. His father looked very happy and proud when [the child] made this statement. … They continued laughing and giggling with each other. They were both like two young boys together. [The stepmother] and [the paternal grandmother] joined the interview with [the father] and [the child]. They all appeared happy and relaxed. [The child] was cuddling his father. … [The child] said he likes to play games with [the stepmother. …They were laughing.”
The father said about his son:-
“He continually says he hates [the maternal grandmother], [the maternal grandfather] and [the mother]. He says he’s got a good plan to kill them.”
The child then said:-
“Yes, I’ve got a plan to kill [the mother] and to break her neck and kick her in the groin.”
The stepmother then reported that when they had recently been in the pool together the child had approached her in the pool:
“He groped me in the pool and he tried to hurt his dad in the groin area.”
Dr R then went on to say:-
“[The father] said that he had concerns about how [the child] looked at times. Sometimes he would get a strange look in his eyes. ‘His eyes were empty. He had no soul. I was scared. It was if he was left all day alone at home. His pet fish had died. He was left alone.’”
The contrast between what the child is saying in the two different settings is startling. The doctor, in his recommendations, recommended that the child remain living with his mother, who he assessed as extremely capable and a well balanced parent who also supported a relationship between the child and the father and the father’s family even though she had experienced enormous undermining from the father.
In his first report the doctor recommended a reduction in time between the child and the father for six months. The doctor also made recommendations for the adults in terms of participation in various programs, both post separation courses and for counselling.
Dr R was concerned that alienation developments were serious and that there was a strong chance that:-
“Even more elaborate and worrying allegations could develop.”
The father had the opportunity to read and consider that report. The information in that report that an innocent showering of the child by the grandfather to teach him how to wash his own genital area when he was approximately four years old did not allay the father’s fears.
Dr R says this in his second report (page 14):-
“[The father] is still blinded by the statements are made from [the child] that he appears to be initiating. He is still pursuing the fact that he believes that [the maternal grandmother] sleeps in the same bed and hits with a spoon, and that the grandfather may have had a shower with him. He doesn’t appear to have digested my report and assessment and it would appear wants to continue pursuing residence, abuse allegations and justice. I was feeling particularly pessimistic about the potential of the father to continue to have a role in the child’s life, except there seems to be some slight change in mood between the mother and father towards the end of the joint interview. It gave me some hope that some limited role could be possible for the father. However, the father’s insight and ability to digest the information from the child is extremely limited and [the stepmother] is no help.”
Dr R gave oral evidence that a psychiatric referral for the father would be helpful but not essential. To his credit, at the conclusion of the evidence the father put forward a proposal that provided for him to seek psychiatric assessment and treatment as required.
Dr R noted that the counsellor who the father had taken the child to see, Dr S, had fairly recorded in his report his own lack of experience with young children. In the circumstances of the interview which took place, Dr R said he understood why Dr S would have made the report to DoCs that he did.

The Mother

The mother gave her evidence in a calm and considered way. She denied having ever left the child alone all day. She said that she did leave him alone for never more than 20 minutes in more recent times when she went down to the shop for items such as milk and bread.
The mother said that the relationship between herself and the stepmother had been poor since 2006 when there had been a conversation about the resolution of property interests between the parties. She said that the stepmother had said to her:-
“I am [the father’s] nominated representative. You have to speak to me.”
I formed the view that the mother had withdrawn from communication with both the father and his wife. She readily conceded that better communication between the parties would assist the child. She said should would :-
“Love to communicate with [the stepmother].”
The mother gave evidence about confusion over a contact weekend when she had taken the child to the police station and he had not been collected. She had explained to the child:-
“There might be an accident holding dad up.”
The mother spoke in an impressive way about her concern for the child’s happiness and his difficulties at school. She went on to say that he had learned a technique of putting unhappy feelings in an unhappy box through a counsellor and that this had been of some assistance.
The mother had arranged speech therapy for the child.
The mother was an impressive witness, thoughtful and willing to make concessions about past and future conduct. She showed courage in being willing to participate in a mediation and indeed the parties were able to participate in a child dispute conference held towards the end of the hearing with family consultant, Ms L. This opportunity to speak to each other appeared to be of assistance to the parties.
The mother described the father as a kind and loving person but
“When he’s angry he’s really quite scary.”
She expressed a willingness to facilitate school holiday time if communication could be restored between the parties.
Importantly, the mother gave a description of events when the child was approximately four years old which were of great significance in the father coming to understand the genesis of his allegation. The mother said that when the child was starting kindergarten he wanted to use the shower himself. He wished to cease having a bath. He wanted to wash himself and “be a big boy”. The mother allowed him to get into the shower, which was a hand held shower. She said she used to say to him:-
“Wash your willy, pull the raincoat back, put the soap on and give it a wash.”
The child wanted to shower himself. He didn’t object to his mother being in the shower with him but the child was inclined to scatter water everywhere and to become somewhat over excited. The mother asked her father to have a shower with the child and show him what to do. She said her father had had a shower with the child about 10 times, that she had stood outside in the family room and listened to what was happening. She said her father was a little unsure that it was a good idea but in her view the child had had a lot of fun.
I observed the father listening carefully to this evidence and to the evidence given by the maternal grandmother.
The mother was asked:-
Q:“Didn’t you ask [the child’s] father to assist with teaching [the child] cleaning himself.”
A:“No. I assumed that he would be teaching him. I didn’t say anything about it. It was the action of a responsible father to undertake that. I assumed if he was teaching [the child] that he would be doing it.”
The mother was also asked whether she told the father that she had asked her father to help the teaching of the child to clean himself. She said no that she had the belief that shared responsibility meant that the child’s care was her responsibility when the child was with her and the father’s responsibility when the child was with him.
The mother denied the proposition that she had been trying to exclude the father from the child’s life. I accept that the mother at no time tried to exclude the father from the child’s life. She did, however, fail to communicate well with the father. For instance, she did not let him know that she had arranged for the child to wear glasses and had simply put them in his bag. There is no doubt communication has been non-existent between the parties.
The mother, quite sensibly, said:
“In hindsight it would have been sensible to send a letter setting out what happened.”
I formed the impression that the mother realised that the father was hearing the explanation for what the child had been saying for the first time and that a great deal of heartache and distress could have been prevented.

The maternal grandfather

The maternal grandfather also spoke about the showering of the child. He said neither of them ever touched each other in the genital area. He said he gave a word description of what to do for the child to attend to hygiene in relation to his genitals:-
“To wash the willy, pull the raincoat back, give him a wash.”
The grandfather also said that his wife, the maternal grandmother, had been in the bathroom on each occasion with a towel ready to wrap the child and assisting in trying to prevent too much water being scattered. She usually sat on the end of the bath and this happened on each occasion in the early evening. He said the washing started somewhere in about February and mid 2006
The maternal grandfather also said that the child did not like having his hair washed. It seems likely that the child not liking his hair washed and perhaps getting shampoo in his ears was the real reason why he told his father in the first place that he didn’t like having the showers. It certainly seems that every other aspect of the shower was a great source of fun for the child.
The maternal grandfather said that he had had no problems in his relationship with the father until 2006 when the father had called him a paedophile.

Section 60CC factors

s.60CC(3)(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

Dr R assessed the child’s stated views in this way:-
“The child’s stated wishes are extremely confused.”
However, an analysis of the child’s behaviour reflected an unshaken bond with his mother and a strong bond with his father and stepmother. The fact that the child has been stating that he hates his mother and maternal grandparents and has plans to hurt and even kill them, can be disregarded as a child who has been under pressure for a very long time to make negative statements about the maternal household.

s.60CC(3)(b) The nature of the relationship of the child with:
(i) each of the parents; and
(ii) other persons (including any grandparent or other relative of the child)

The child has an excellent relationship with his mother. He has a loving bond with his father but has been under pressure in his father’s household to make complaints and reports about the mother’s household.
The child’s grandparents are all important to him and, of course, particularly the maternal grandparents with whom he has lived with for three years.

s.60CC(3)(c) The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent

The mother has persevered with providing the child for contact despite unpleasant scenes at the police station and abusive comments and conduct by the father including passing the grandparents house and making a rude gesture to the grandparents on at least one occasion.
The mother appears to have clearly understood that the child needed to maintain his relationship with his father despite the difficulties. The father on the other hand has been pursuing allegations and during his most recent interviews with Dr R said that he would continue to pursue this, however, to his credit he did, as I have stated earlier, withdraw the allegation and advised the court that he accepted that the child had come to no harm at the hands of the maternal grandfather. However, the father failed to protect the relationship between the child and his mother at this time and did not take up any opportunity to communicate clearly and honestly with the mother about the basis for his fears.

S.60CC(3)(d) The like effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
a) either of the parents; or
b)any other child, or other person (including any grandparent or other relative of the child), with whom they have been living

There will not be any significant change from the child’s point of view as a result of the orders other than perhaps a reduction in the stress and anxiety that the father has felt over the last four years with a consequential reduction in pressure for the child.
s.60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
The father and his wife live approximately 2 ½ hours north of Newcastle by road but there will be no difficulty in the father travelling to collect the child for periods of time.

s.60CC(3)(f) The capacity of the children’s parents and any other person (including any grandparent or other relative of the children); to provide for the needs of the children, including emotional and intellectual needs

At present the father’s capacity to provide for the child’s needs is somewhat limited. He does not provide financially for the child, although it may be that this will change given his evidence that a small business is now being built up. He also apparently relates to the child more as a peer than as a father and feels a lack of confidence in his ability to assist the child with his education.

s.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of their of their parents, and any other characteristics of the children that the court thinks are relevant

J is a nine year old boy with no siblings. He has been showing significant behavioural problems at school and has been empowered to tell ever increasingly detailed stories of mistreatment in the mother’s household and of his own violent plans.
The child is likely to experience considerable relief from spending short periods of time once a month for six months while his father seeks some assistance from a psychiatrist.

s.60CC(3)(h) If the children are Aboriginal or Torres Strait Islander:
e)the children’s right to enjoy their Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
f)(ii) the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

s.60CC(3)(i) The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

The mother has demonstrated an unwavering responsibility to the child. She has worked to support him. She has supported his relationship with his father and she has withstood the financial and emotional difficulties of this round of litigation revolving around allegations of sexual misconduct by her father.
The father has been motivated to protect his son but has not gone about it in a considered way. Hopefully, he will be able to spend more time with the child in future and to accept responsibility for raising his son, not just enjoying time spent with him in play.

s.60CC(3)(j) Any family violence involving the children or a member of the children’s family

There is no evidence of family violence.

s.60CC(3)(k) Any family violence order that applies to the children or a member of the children’s family, if:
i) the orders is a final order; or
ii) the making of the order was contested by a person

There has been no family violence order.

s.60CC(3)(l) Whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings in relation to the children

In the event that both parents work on their ability to communicate and to assist the child there should be no need for the institution of further proceedings.

s.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

By the conclusion of submissions, the parties had acknowledged that they had not only a need but a desire to seek assistance in communicating with each so that misunderstandings would not occur again, particularly, given the painful consequences of this misunderstanding by the father of what was an entirely innocent exercise by the maternal grandfather in assisting his daughter to teach basic hygiene to his four year old grandson.
It does seem likely that the parties, the father’s wife and the three grandparents will make a commitment to communicating well and in a straightforward and courteous way for the child’s benefit.

s.60CC(4a) If the child’s parents have separated, the court must, in applying subsection (4) have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred

The mother has made the long term decisions in relation to the child since separation and she has not included the father in the decision making process. For instance, about speech therapy, the wearing of glasses and a change of school. There are cogent reasons for why communication broke down as badly as it did and it is my confident expectation that the mother will take seriously her obligation to consider the father’s views before making decisions in the coming years.

RELEVANT LEGAL PRINCIPLES TO BE APPLIED

There are competing applications for parenting orders. Section 60CA is as follows:-
In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.
The process of determining what is in a child’s best interest is set out in section 60CC and I have considered those matters accordingly.
In relation to parental responsibility, both parents initially sought in their respective applications that they have equal shared parental responsibility. Section 61(DA) of the Family Law Act 1975 is as follows:-
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The presumption is rebutted by evidence as follows. The parties have had an inability to communicate with each other about all of the issues that concern the child’s progress and welfare. The mother had ceased communicating because of the father’s unrelenting focus on his belief that the child had been sexually abused.
The father suffers from anxiety which is presently untreated although his proposal is to be referred to a psychiatrist and for treatment.
The assessment of Dr R was that the father did not have a great deal of insight[1]and the doctor did not believe that the father was very skilled in his parenting capacity.
[1] Report 28 June 2010 pg 14
There is a need for the father to learn to listen carefully to his son, to consider what is said and to respond and react in a way that is going to be helpful to the child. The father has acknowledged that he has misread a situation with detrimental effect to all the parties but particularly the child. The father has acknowledged that he made a mistake and that there has been no sexual misconduct by the maternal grandfather. This is to the father’s credit.
The father has now, through the amended orders sought at the conclusion of the evidence, put forward the proposal that he will seek psychiatric assistance and will work through the issues highlighted by Dr R with that psychiatrist. Accordingly, this evidence rebuts the presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility. However, in the circumstances set out above it is appropriate for the mother to take into account the views and contributions that the father might have to long term decision making and I have ordered accordingly.
The presumption having been rebutted, I am not required to consider equal time or significant and substantial time.

CONCLUSION

This is a matter where the resources of the State have been brought to bear in a way which has been enormously unhelpful to the child. J is reported as having said in October 2009:-
“I hate my life. I wish I was dead.”
In a book that he was given to write about his feelings, he wrote:-
“[J] is dead !!!!!!!!”
The child has over the last four years been interviewed and assessed by a great many experts. He has been interviewed more than once by DoCs officers and the JIRT team. He has been questioned closely by members of the paternal family and by teachers at his school where he has misbehaved on many occasions. He has been taken to counsellors, a psychologist, to medical practitioners. He has been assessed by Dr R for two separate reports. He has been interviewed by the Independent Children’s Lawyer.
The child is reported to have pushed and punched and hit other children at school and to have broken school property. The child has been under enormous pressure. No doubt what the child wants is for his parents to be able to get on in a friendly way.
There does seem to be a real prospect that with hard work and professional intervention for the parents, especially the father, the child will get a positive outcome.

I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary

Associate:

Date: 17 August 2010

[2010] FamCA 725

17 August 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Injunction