CERWIN & CERWIN (No.3)

[2020] FCCA 2407

FEDERAL CIRCUIT COURT OF AUSTRALIA

CERWIN & CERWIN (No.3) [2020] FCCA 2407

Catchwords:
FAMILY LAW – Final arrangements for care of child aged 13 (12 at date of trial) – completed proceedings in 2013 provided for child to live in City B with mother and spend regular defined periods of time with father in Adelaide – high conflict – allegations child subject to abuse in father’s care – father alleges allegations concocted in an attempt to alienate child from him – father seeks change of living arrangements – matters to be considered – unacceptable risk – parental insight – meaningful relationship – effects on child of change of circumstances – best interests.

Legislation:

Evidence Act1995 (Cth), s.140

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 65L

Cases cited:
B & B (1993) FLC 92-357
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Bartel & Schmucker (No 3) [2012] FamCA 1094
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Fox v Percy (2003) 214 CLR 118
H v W (1995) FLC 92-598 at 81,944
M & M (1988) FLC 91-979
Mazorski v Albright (2007) 37 FamLR 518
MRR v GR (2010) 240 CLR 461
N & S and the Separate Representative (1996) FLC 92-655
R & R: Children’s Wishes (1999) 25 Fam LR 712
Cerwin & Cerwin [2013] FMCAfam 160
Cerwin & Cerwin [2019] FCCA 3184
Cerwin & Cerwin (No.2) [2019] FCCA 3339
Russell & Russell & Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
Stevenson v Hughes (1993) FLC 92-363
W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892

Applicant: MS CERWIN

Respondent: MR CERWIN

File Number: ADC 4232 of 2012

Judgment of: Judge Brown

Hearing dates: 17, 18, 19 July 2019, 2, 3, 4 October 2019, 10 March & 7 April 2020

Date of Last Submission: 7 April 2020

Delivered at: Adelaide

Delivered on: 31 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Lindsay

Solicitors for the Applicant: Harry Alevizos

Counsel for the Respondent: Mr Dillon

Solicitors for the Respondent: Carlin Lawyers

ORDERS

1. The parties have equal shared parental responsibility for the child X born in 2007 (hereinafter referred to as “the child”).

2. In the exercise of this equal shared parental responsibility for the child the parties are to consult with each other in respect of all major long term decisions pertaining to the child, which include but are not limited to, issues concerning the following:

   (a)The child’s education (both current and future);

   (b)The child’s religious and cultural upbringing;

   (c)The child’s health and any special needs;

   (d)The child’s names; and

   (e)Any changes to the child’s living arrangements, which significantly interferes with the operation of these orders, particularly with the specific arrangements for the child to spend time with each parent.

3. The parties shall:

   (a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;

   (b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the child as soon as is reasonably practicable but no later than 24 hours after such consultation and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the child; and

   (c)Inform the other parent as soon as is reasonably practicable but no later than 24 hours after such issue has arisen of any medical issue, significant health issue or significant illness or injury suffered by the child.  This order authorises any treating medical practitioner to release details of the child’s medical condition and/or injury to the other parent. 

4. The parents authorise by this order, the school, attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at the expense of the parent requesting same). 

5. Each parent is at liberty to attend at the child’s school or other place at which she engages in a recreational or extra-curricular activity for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts. 

6. The parties utilise a communication book, electronic app or other electronic format to exchange information in writing regarding the child’s education; changing sleep requirements; dietary, medical, extracurricular, and behavioural needs and preferences; and any appointments the child has with professional people as they are scheduled to occur. 

7. The child live with the mother.

8. The child spend time with the father as follows:

   (a)During  each school term, on one weekend, from the conclusion of school on Friday until 5.00 pm the following Sunday or 5.00 pm the following Monday in the event that Monday is a public holiday;

   (b)For ten days in each short-term school holiday at times to be agreed between the parties and in default of agreement from 5.00pm on the last Friday of term until 5.00pm ten days thereafter;

   (c)For the end of year school holiday commencing in 2020/2021 for the first and second weeks and fourth and fifth weeks of the Christmas school holidays which will not encompass Christmas Day and in each alternate year thereafter; NOTING THAT if the father’s time concludes early to accommodate Christmas Day (for the mother) the father’s time in the fifth week will be extended;

   (d)For the end of year school holiday commencing in 2021/2022 for the second and third and fifth and sixth week of the Christmas school holidays, which will encompass Christmas day and in each alternate year thereafter;

   (e)At such further and other times as agreed between the parties in writing, which may be by email, during term time for periods of up to three nights and upon the father providing the mother with 14 days’ notice in writing which may be by email;

   (f)At such further or other times as may be agreed by the father and the mother.

9. The parties will use their best endeavours to ensure that wherever possible the time spending arrangement outlined in order (8) hereof will be configured so that the child spends Mother’s Day with the mother and Father’s Day with the father and the child spends alternate Christmas Days with each of the parties.

10. The time specified in orders (8) (a), (b), (c) & (d) hereof take place in Adelaide, unless the parties agree otherwise in writing, which may be by email.

11. The time specified in orders (8) (e) & (f) take place in City B, unless the parties agree otherwise in writing, which may be by email, with the father to bear any costs of travel arising for the child.

12. The father be restrained and an injunction issue restraining the father from:

    (a)imposing on the child’s privacy whilst she is bathing, showering or undertaking her ablutions;

    (b)entering the child’s bedroom after she has retired for the night without her permission.

13. To give effect to order (10) hereof the father is to:

    (a)book the necessary air flights between City B, Adelaide and return and advise the mother 14 days prior to the date of travel of the date and time of departure of each necessary flight and provide her with flight numbers and any other salient details;

    (b)pay for the costs of the child’s travel incurred between City B and Adelaide;

    (c)ensure that the relevant flights are booked as close as possible to the times scheduled for the father’s time with the child to commence.

14. To give effect to order (10) hereof the mother is to:

    (a)reimburse the father the costs of the child’s travel incurred in returning from Adelaide to City B seven days prior to the date on which the child is to be returned to City B;

    (b)deliver the child to the City B Airport at the time directed by the relevant carrier and direct the child to board the relevant flight.

15. All handovers that do not take place at the airport take place outside the City B Police Station or such other place as the parties agree in writing, which may be by email.

16. The father facilitate the child making a phone or skype/video call to the mother between 6.30pm and 7.00pm each Sunday or any other time or times as agreed between the parties in writing, which may be by email, when she is in the care of the father, with the father to accord the child privacy during each such call.

17. The mother facilitate the child making a phone or skype/video call to the father between 6.30pm and 7.00pm each Sunday or any other time or times as agreed between the parties in writing which may be by email, when she is in the care of the mother, with the mother to accord the child privacy during each such call.

18. The parties be restrained and injunctions granted restraining each of them from:

    (a)Abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so;

    (b)Discussing the proceedings in the presence of the child or from permitting any other person to do so;

    (c)Physically disciplining the child when in either party’s care;

    (d)Consuming marijuana or consuming alcohol to excess during any period the child is in their respective care or twenty-four hours beforehand.

19. The mother ensure that the child attend school on a regular and timely basis and that in the event that the child is absent from school on grounds of illness or other family emergency the mother provide to the father a medical certificate or written explanation of such absence within 72 hours of it occurring.

20. Pursuant to section 65L of the Family Law Act 1975 the Senior Family Consultant of Child Dispute Services at Adelaide appoint a family consultant to assist the mother to comply with these orders in respect of X spending time with her father and to this end:

    (a)The family consultant so appointed arrange a conference with the child and the mother, which may be by video conferencing, to explain the orders to X, including that the costs of her air travel is to be shared between the parties and X’s Rules as memorialised in order (12) hereof are to be applied at all times that the child is in the care of her father.

21. The mother provide her therapist and/or psychologist with a copy of these reasons for judgment as soon as is practicable.

22. Any contravention application or other application initiated by the father in respect of these orders or any breach thereof be brought to the urgent attention of the trial judge and listed with the degree of expedition deemed appropriate by him.

23. All other applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Cerwin & Cerwin (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4232 of 2012

MS CERWIN

Applicant

And

MR CERWIN

Respondent

REASONS FOR JUDGMENT

Synopsis

1. Any case involving allegations of child sexual abuse, on the one hand and allegations of child alienation or conscious disaffection of a much loved child from a parent, on the other, are deeply disturbing and confronting for the court.  Necessarily, for self-apparent reasons, such cases inevitably precipitate strong emotions from those involved in them.  They are polarising in the extreme.

2. Sadly, although the thought of it is deeply abhorrent to the vast majority of society, individuals, including parents, do, from time to time, utilise children for sexual gratification.  As such, the court’s fundamental obligation is to provide protection for children.

3. In addition, it is not unknown in cases coming before this court, pursuant to the Family Law Act 1975, for parents to concoct allegations of sexual misconduct and manipulate children in this regard to secure advantage over the other party concerned and as a consequence act in a manner designed to actively facilitate the estrangement of a child from the parent so accused.

4. These issues are not always easy to reconcile and a definitive assessment made.  As with all human institutions, courts are not infallible. The court process may provide a problematic forum to ascertain precisely where the truth about such matters ultimately lies. 

5. As such, a balance must be struck between protecting a child and ensuring that any child maintains the level of loving relationship, with those significant to him or her, which is the right of the child concerned.

6. However, at the end of the day, it may not be possible for the court to determine definitively what has or has not occurred, given the tangle of allegation and counter-allegation.  Its responsibility must always be to secure the best outcome for the child concerned in what are invariably invidious and acrimonious circumstances.

7. This exercise, of itself, may result in outcomes which have the potential to appear grossly unfair to a person, who is entitled to feel aggrieved as a consequence of being falsely accused or the subject of allegations which turn out to be flimsy or misconceived.

8. Essentially, the child concerned is not to be awarded, like a prize to the more deserving parent or removed from a parent by way of penalty or punishment for some lamentable piece of conduct, by that more culpable parent of the two concerned.

9. In the current matter, for the reasons which follow, there is such a dichotomy.  For what it is worth, I am satisfied, on the balance of probabilities, that one of the parties concerned has embarked upon an egregious course of conduct directed to diminishing and reducing the relevant child’s relationship with her father by allegations of misconduct, which at worse have been fabricated or at best hopelessly misconceived.

10. However, given the extent of time the child has been in the predominant care of her mother and the nature of her relationship with that parent, I do not consider that it would be in the child’s best interests to remove her from this longstanding arrangement, notwithstanding the lack of culpability on the part of the father, against whom the allegations have been made, which I am satisfied are without foundation.

11. Issues of geography have also played a part in reaching this decision.  At one stage, it seemed possible that the father might elect to live closer to where the mother and the child concerned live.  At first blush such an outcome might conceivably straddle the dichotomy arising in the life of the child concerned.  However, it also just as likely to intensify the conflict between the parties and make the calls on her already divided sense of loyalties even more intense.

Introduction

1. Mr Cerwin “the father” and Ms Cerwin “the mother” are the parents of X born in 2007.  The mother has a child from an earlier relationship.  He is Mr C born in 1999.

2. The parties first met in 2004 and began to live together later that year, when Mr C was about five.  They married in 2006.  Curiously, although they cannot abide one another, they are not yet divorced. 

3. At present, the mother, X and Mr C live together in City B and have done so since the parties separated on 22 October 2012.  On this date, the mother and children left the home, at which Mr Cerwin continues to live, located at Suburb T, in suburban Adelaide. 

4. The next day, they drove to City B, where the mother’s family live and she herself grew up.  In addition, Mr V, Mr C’s father also lived in City B at the time.  One thing is clear, in this much disputed case, the father was not consulted about X and Mr C’s move to City B and did not agree to it. 

5. Although Mr Cerwin has himself lived in City B in the past, his employment and family connections, particularly in the form of his mother, were and remain based in Adelaide.  As such, at the time of separation, he could not easily move and feared that the distance between City B and Adelaide would inevitably have deleterious consequences for the nature of his relationship with both X and Mr C. 

6. At the time, it was the mother’s position that she had ample and compelling reasons to move to City B, not only for her own emotional support but also to escape an unhappy and coercive relationship with Mr Cerwin, which included him being “abusive and hostile” towards Mr C.[1]  This was a theme of the subsequent proceedings and remains so.

   [1]  See mother’s affidavit filed 10 December 2012 at [38]

7. As the crow flies, it is about 250kms between Adelaide and City B.  To drive by road, between the two locations, takes much longer because of geography.  In practical terms, it is easier to fly, but potentially much more expensive. 

8. Mr Cerwin began the first round of proceedings, soon after separation, in November of 2012.  From his perspective, the situation then prevailing is what lawyers commonly characterise as a unilateral relocation, which was inimical to the children’s best interests, particularly in terms of them maintaining a meaningful level of relationship with him. 

9. His application related to both X and Mr C.  From Mr Cerwin’s perspective, he had been a father figure to Mr C for the vast majority of the child’s life and loved him as his own.  However, since October of 2012, he has played no role in Mr C’s life, which is a source of great regret for him.  He was and remains determined that the same fate will not befall X. 

10. In this context, on both an interim and final basis, the father sought orders for both X and Mr C to live with him in Adelaide.  It was his position that Ms Cerwin suffered severe and long standing psychiatric problems, which precluded her from parenting the two children concerned effectively.[2]  In addition, he alleged that she had an addiction to marijuana.

    [2]  See father’s application filed 8 November 2012

11. In response, the mother sought orders allowing her to live in City B with the children.  She opposed the making of any orders in respect of Mr Cerwin spending time or otherwise interacting with Mr C.  She made no clear proposal for the father to be able to spend time or communicate with X.[3]

    [3]  See response filed 10 December 2012

12. Mr V joined the proceedings in December of 2012.  He supported the mother’s position, although in the past he and Ms Cerwin have had an extremely conflicted parenting relationship, following a brief personal involvement.  For his part, Mr V sought orders allowing him to be able to spend regular periods of time with Mr C and an injunction preventing the child’s removal from City B. 

13. At this early stage, the themes and motifs of the case, which have persisted to the present time emerged.  The father portrayed the mother as an unstable, vindictive and manipulative person, who was inclined to make false allegations against him and manipulate the children to turn against him, initially Mr C and then more recently X.

14. For her part, the mother characterised the father as an abusive and violent parent and spouse, who had a deviant sexual interest in Mr C during their relationship and had subjected him to excessive physical abuse.  Mr Cerwin has consistently denied that he has ever done anything inappropriate so far as Mr C is concerned.

15. Mr V filed an affidavit on 17 December 2012, in which he deposed that Mr C had told him that Mr Cerwin used to hit him with a belt.  Mr V was unsure whether to believe Mr C or not as he considered that the child might be “making things up so he didn’t have to go back to Adelaide”.[4]  

    [4]  See affidavit of Mr V filed 17 December 2012 at [11]

16. I was called upon to resolve the issues arising from the mother’s unilateral relocation in the context of an urgent interim hearing, which took place on 30 January 2013.[5]  At that stage, the mother indicated that she had no accommodation in Adelaide.  In this context, the father offered the former family home, provided Ms Cerwin pay the mortgage and outgoings relating to it.  Ms Cerwin did not believe she would be able to make these payments.

    [5]  See Cerwin & Cerwin [2013] FMCAfam 160

1. Mr V opposed Mr C’s return to Adelaide.  Ms Cerwin asserted that it would be emotionally detrimental for X to be compelled to return to Adelaide and be separated from her older half siblings.  Each of the parties had stringent criticisms of the other relating to marijuana abuse, mental illness and family violence.

2. Ultimately, I decided to expedite the final hearing and permit the mother to stay in City B, with X, pending final hearing and whilst a family report was prepared.  I formed the view that Ms Cerwin had been both Mr C and X’s primary carer, up to that stage.  Further, I did not think it was in the interests of the children to be separated and I was concerned where Ms Cerwin would live and if this was in straitened circumstances, what would be the implications of this to parent the children effectively.

3. I concluded as follows:

   “However having closely considered, I hope, the various section 60CC factors, I have come to the conclusion that the children’s best interests will be served if they live in the same household and are not separated.  At this stage it would appear to be potentially detrimental to Mr C and contrary to his views to place him in the care of the father in Adelaide. 

   Separating the children and placing Mr C with Mr V appears to me to be a problematic and untested option, given that Mr C is currently in the throes of reforming his relationship with his father. 

   In addition, it appears to me to be inherently contrary to the children’s best interests to leave Mr C in City B and compel, in effect, the mother and X to return to Adelaide under an arrangement where X would continue to live predominantly with her mother.

   In my view this militates in favour of the children remaining in the mother’s care, pending trial, provided adequate arrangements can be made for X to engage with her father in the period pending trial.  In my view there are too many problematic issues arising from compelling the mother and X to return to Adelaide and in any event such an outcome could be achieved only by disregarding the mother’s entitlement to live where she chooses. 

   The chief detriment of the mother’s position is that it may cause the playing field to be skewed, at final hearing, in her favour and indeed to render such a hearing otiose.  I am well aware of this difficulty.  However the final hearing will be about six months away and I do not consider that this of itself will necessarily render a further hearing obsolete.

   In the period pending final hearing, I am satisfied that X can sustain a meaningful level of relationship, which I concede will not be the optimal level of relationship, if she sees him during school holidays and on two occasions during each term. 

   Given that the mother has moved she must contribute towards the costs of this travel involved notwithstanding that she is in receipt of social security.  I am also minded to order that school holiday times occur in Adelaide and one weekend period occur in City B during the school term with the other in Adelaide.  If the parties book in advance the expense involved although I concede will be considerable I have come to the view that it will be manageable. ”[6]

   [6]  See Cerwin & Cerwin (supra) at [124]–[130]

4. As matters have transpired, this turned out to be a seminal decision.  X has lived in City B ever since.  Mr C continued to be estranged from Mr Cerwin.  Initially, the time spending arrangements did work reasonably well.  No doubt these factors influenced Mr Cerwin to compromise the expedited hearing.

5. Ms Cerwin continues to consider Mr Cerwin to be neither a caring nor emotionally involved parent.  Throughout the current proceedings, she has continued to assert that Mr C was abused by Mr Cerwin.  In these circumstances, it is her view that it is readily understandable why X would resist wanting to spend time with her father because there is something not right about his home life and personality. 

6. Mr Cerwin is a little older than Ms Cerwin.  He was born in 1966; she was born in 1974.  Mr Cerwin also suffers from some serious health issues.  He suffers from type one diabetes and has done so since he was fourteen years of age, which he manages through daily insulin injections.  He acknowledges being significantly overweight and having high blood pressure and cholesterol issues, both of which are medicated.

7. In the mother’s view, these conditions are significant and preclude Mr Cerwin from being an active and fully involved parent and he himself is not a particularly good housekeeper, who has failed to keep his home free of spiders, of which X has a phobia.  She is also concerned that X has, in the past, shared her bedroom with her elderly grandmother.  These are all factors which have apparently stoked her suspicions that there is something untoward in the father’s household.

8. For his part, Mr Cerwin asserts that his diabetes is well managed and his home perfectly equipped for a child of X’s age.  He denies ever having been hyperglycaemic to such an extent that he had to rely on X for assistance.

9. Against this difficult background, at an early stage of proceedings, it was ordered that both Mr C and X be represented in the proceedings.  This appointment ended on 7 August 2013, with the consensual resolution of the first round of proceedings, when Mr Cerwin conceded the relocation issue. 

10. It is a source of much regret to me that this appointment was not renewed in the bitterly contested proceedings which have subsequently ensued.  In my own defence, neither party asked for such a re-appointment until the final hearing, which gives rise to these reasons for judgment, was part way through and the substance of the mother’s case had not been fully or clearly articulated in the period leading up to trial, particularly in regards to issues of the sexual abuse of X.  As will become clearer, as these reasons for judgment unfold, it is my view that the mother’s allegations in this regard have been inchoate and marked by a growing flavour of hysteria.

11. In May of 2013, Mr D, a social worker and family consultant wrote the first of three family reports for the court.  At this early stage, significantly, Mr D recommended that both children should return to live in the Adelaide area but reside with Ms Cerwin.  His recommendation was based on the significance of the relationship X, in particular, had with her father and concerns that the mother might not be inclined to support that relationship in future.

12. After observing X with her father and paternal grandmother, Ms CC, who is now 82 years of age, Mr D described the father as gentle, child focussed and emotionally engaged.[7]  Mr D described a portion of his interview, at the time, with X, as follows:

    “X clearly expressed a desire to return to Adelaide and have more time with Mr Cerwin.  She commented that her mother does not like her father, fights with him and is very, very angry.  She wished things could go back to normal and to sleep better.”[8]

    [7]  See family report dated 1 May 2013 at [120]

    [8]  Ibid at [89]

13. In his overall assessment, Mr D could see more to be gained by the children returning to Adelaide than remaining in City B.  He expressed considerable doubts about the mother’s account of Mr C having been physically abused by the father or being the subject of his sexual interest but conceded that these were evidentiary issues, which fell within the overall purview of the court, rather than him.  Given the consensual resolution of the case, these issues, which remain contentious, were not subject to judicial scrutiny. 

14. Given his view regarding the strong and meaningful relationship between X and her father, Mr D recommended that she spend substantial and significant time with her father both during the school year and in holiday periods.  Mr D assessed the relationship between Mr C and Mr Cerwin in negative terms and in these circumstances recommended that the child spend time, with Mr Cerwin, subject to his wishes. 

15. Mr D’s report was prepared in anticipation of the final hearing scheduled for August of 2013.  The trial did not proceed and no evidence was taken as the parties agreed on final orders, which were approved by the independent children’s lawyer concerned. 

16. Contrary to Mr D’s recommendation, Mr Cerwin did not pursue his application to require the return of Mr C and X to Adelaide.  Rather, he agreed some orders enabling him to have regular time with the children in Adelaide. 

17. At the time, I was told that he hoped by making the concession sought by the mother, his relationship with Ms Cerwin might become somewhat easier.  Essentially, it was agreed that Mr Cerwin would have closely defined and regular time, with X, as follows:

    ·On one weekend during each school term;

    ·For a further weekend, during each school term, provided notice was given;

    ·For ten days during each short school holiday;

    ·For three separate weeks, during the long end of year school holiday;

    ·At other times as agreed.

18. Significantly, Ms Cerwin agreed to bear the cost of X’s travel, between City B and Adelaide, for the majority of the school holiday visits.  At the time of the orders, although she had some employment, she was not in a strong financial position and was living with her parents.  

19. Issues about the cost of X’s travel to Adelaide have been a longstanding bone of contention between the parties – a fact of which X herself is well aware.  In addition, as will become evident in due course, she is well aware of the bitter dispute between her parents regarding every aspect of these contact arrangements.

20. Although orders were made, as recommended by Mr D, in respect of Mr C, it is common ground that he has never spent any time with Mr Cerwin and the two remain estranged.  It is the father’s position that this estrangement can only be explained by the mother’s actions and antipathy for him. 

21. During the first round of proceedings, the father had been concerned that X was not attending school regularly, whilst in her mother’s care.  He was able to access school records, which confirmed his concerns and indicated a significant level of non-attendance for both children. 

22. In these circumstances, in August of 2013, an order was made requiring the mother to ensure X’s school attendance, on a consistent basis, other than when the child was certified as being medically unfit by an appropriately qualified medical practitioner. 

23. Between August of 2013 and February 2018, the court had no further involvement in the life of X.  From the father’s perspective, he did spend time with X, not always without difficulty, but nonetheless his relationship with her remained a strong and loving one.

24. From the mother’s perspective, on the basis of what X had told her and the child’s presentation both before and after spending time with her father, she became increasingly concerned that something untoward was occurring in Mr Cerwin’s household, which involved X.

25. As a consequence, she asserts that she came to believe that the child might require some form of professional assessment and perhaps protection.  This state of mind led Ms Cerwin to seek advice from a number of medical practitioners in City B about what she should do.  Concurrently with this, she alleges she experienced extreme difficulty in persuading X to board her flight to Adelaide to spend time with her father.

26. In was in this context that she sought medical advice.  As a result of this advice she ultimately took X to the police, in City B, who investigated whether she had been sexually abused by her father.  No charges were laid.  Documents have been subpoenaed from the police but have not been tendered in the proceedings before me.

27. It is Mr Cerwin’s position that the mother doctor shopped in City B until she found a sufficiently impressionable doctor, who would be amenable to give credence to her (the mother’s) concocted allegation that X was at risk of sexual abuse. 

28. In this context, he is highly concerned that the mother has manipulated X, in some way, to believe that she has been sexually abused by him so that she (the mother) can bring about X’s alienation from him.  From his perspective, this constitutes extreme emotional abuse of the child.

29. On the other hand, it is Ms Cerwin’s position that what she did was entirely reasonable and understandable in the overall circumstances of the case and it was perfectly proper for her to seek medical advice for X and have her examined. 

30. As a corollary of her case, her counsel, Ms Lindsay has asserted that the mother has a heightened sensitivity to issues of child sexual abuse because of her own background and experience.  In these circumstances the mother denies any active or covert manipulation of X to bring about a state of estrangement between her and the father.

31. X did not spend time with her father, as scheduled in the Christmas school holiday of 2017.  She had also missed the previous holiday, due to illness.  At this stage, Mr Cerwin was also concerned that X had missed multiple days of school, in both 2016 and 2017, which heightened his concerns that X’s educational needs were being neglected in the mother’s household. 

32. These alleged breaches of the August 2013 orders led to Mr Cerwin instituting contravention proceedings in February of 2018.  More recently, these proceedings have been withdrawn and been supplanted by competing parenting applications, which now fall for the court’s adjudication. These are the subject matter of these reasons for judgment. 

33. Ms Cerwin, in her application filed 13 July 2018, sought orders that X, as with Mr C before her, should only spend time and communicate with her father, subject to her wishes.  At the time of this application, X was around 11½ years of age, which in Mr Cerwin’s view was too young an age for her to be able to make such potentially momentous decisions. 

34. In her evidence, Ms Cerwin advanced the opinion that the view of any child, when they reached the age of 12, would be regarded, by the court, as being determinative of all future care arrangements for that child.  Essentially, it is Ms Cerwin’s view that once a child reaches the age of 12, that child should be able to decide whether to interact with a parent or not. 

35. It was Ms Cerwin’s evidence that she had been provided with this interpretation of the law by one of her previous lawyers.  The implication being that X’s view, which from her (the mother’s perspective) was cut and dried, should be immediately implemented.  If this advice was provided to Ms Cerwin, about which I am dubious, it is both negligent and misleading. 

36. There is no such dogmatic principle of the law.  Rather, a child’s views are one of very many factors to be taken into account and, in this context, the court is duty bound to analyse the overall maturity of the child concerned and any other factors, which may be influencing the child’s views, including the involvement of parents in shaping such a view. 

37. From Mr Cerwin’s perspective, if an order is made in the terms sought by Ms Cerwin, it will have the nature of a self-fulfilling prophecy and inevitably X will fall under her mother’s sway, as Mr C did before her, and she (X) will lose her hitherto positive relationship with her father and paternal grandmother. 

38. He is suspicious that there can be no coincidence between the beginning of X’s purported reluctance to spend time with him and the mother’s fallacious opinion that, once a child is twelve, he or she can decide whether they will or will not spend time with a parent.  

39. It is his submission that the only logical inference arising from the mother’s behaviour is that she is actively attempting to influence X against him in tandem with manufacturing grounds as to why the child is so negatively orientated in respect of him, namely that she has been subject to some form of abuse.

40. Mr Cerwin is not able to glean definitively why Ms Cerwin would want to deprive X of having a paternal relationship with him.  He believes it may relate to her animosity for him or for some other untenable reason relating to what he regards as her unusual and idiosyncratic interpretation of the world, quite possibly stemming from the mental infirmity, from which he believes she (Ms Cerwin) suffers. 

41. If this is the case, he fears that Ms Cerwin will, in time, infect X, either consciously or unconsciously, with her distorted world view, with possible adverse emotional consequences for the child in the longer term.  More sinisterly, he fears that Ms Cerwin may be actively attempting to manipulate X, by inculcating unreal fears into the child, about all manner of things, in order to alienate her affections for him.

42. Whatever is the reason, it is Mr Cerwin’s position that the mother’s household represents an unhealthy emotional environment for X, from which she must be removed as a matter of urgency, regardless of the fact that she has lived in Ms Cerwin’s household, with Mr C, for very many years and has strong connections, in City B to both her maternal grandparents, whom she sees regularly and others in the community there, including her school mates and friends at a gun club, which she attends.

43. Accordingly, notwithstanding the emotional tumult it will almost certainly occasion for X, Mr Cerwin submits that it is likely to be in her best interests to live primarily with him in Adelaide and spend regular holiday time, with her mother, in City B.  This being the only mechanism, extreme though it may be, through which X can have a proper relationship with each of her parents, not just one of them. 

44. It is my perception, partially at least acknowledged by her counsel, Ms Lindsay, that the mother’s case was not particularly well prepared, but was essentially reactive in nature to Mr Cerwin’s efforts to maintain his relationship with X. 

45. As a consequence, what Ms Cerwin’s actual position in the case was appeared to me to shift and change as the evidence unfolded, particularly whether it was her view that X had actually been sexually assaulted and therefore she (Ms Cerwin) was justified in withholding her from her father in order to protect her or she was responding to the child’s views.  I am concerned that these changes in stance were tactically motivated, as the evidence ebb and flowed.

46. Initially, at least, Ms Cerwin’s position appears to have been that X had been sexually assaulted by her father and remained at risk from him in this regard.  More recently, it appears to be her case that she had an honestly held but mistaken belief that X was at such risk, which was understandable given her experiences of life up to this stage. 

47. In this context, it is now submitted on her behalf that, now all relevant evidence has been canvassed, this mistaken belief can be better managed in future and perhaps ameliorated through appropriate therapy.  In such circumstances, the extreme step of removal of the child from her care can be avoided. 

48. Essentially, at the end of the case, it appears to be her position that, with such management and the apparently chastening effect of these proceedings, X could remain in her care and continue to see her father regularly, as envisaged by the August 2013 orders, without any future interruptions because the relevant orders will receive Ms Cerwin’s unconditional support in future. 

49. This would obviate the need to dramatically change X’s living circumstances with the concomitant disruption to her relationships with her mother, brother, maternal grandparents and friends arising from her abrupt removal from the environment with which she is familiar, which, in itself has the potential for unpredictable and volatile consequences. 

50. In support of this contention, Ms Lindsay points to the fact that between 2013 and 2018, a not insignificant period of around five years, Ms Cerwin did largely abide by the court’s orders and, as a consequence, X has been able to maintain a relationship with her father, notwithstanding the distance between Adelaide and City B and the poor relationship between her parents.  If orders have been complied with in the past, they can be followed again in the future.

1. From the mother’s perspective, for obvious reasons, to do otherwise would be emotionally devastating for X, as it would uproot her from her longstanding primary carer, remove her from the familiarity of her home and family environment in City B and cause the disruption of her sibling relationship with Mr C.  Ms Cerwin contends this cannot be a justifiable outcome, when X’s overall best interests are considered. 

2. Mr Cerwin greets this proposal with incredulity.  He points to the fact that the mother has provided limited evidence of any change in her attitude and no actual proof that she has engaged in any form of psychological therapy or will remain committed to it. 

3. As a consequence, he fears that, once the pressure arising from these proceedings is withdrawn, it is inevitable the mother will return to her previous ways and attempt to disrupt his relationship with X through whatever mechanisms are open to her.

4. Given the polarised positions of the parties, this is an extremely distressing case, which can provide no good outcome for X.  Inexorably, step by step, it has moved to a situation in which the court is effectively presented with a zero sum game, which the parties themselves have been unable to halt.  Each of them (and X more importantly) has much to lose as a consequence.

5. Either X is moved to her father’s care, so she can have a relationship with him but at the cost of the precipitation of a sense of loss, grief and perhaps responsibility in X herself and the inevitable blow-back of a hostile and oppositional reaction from Ms Cerwin, with possibly many adverse and unforeseen consequences. 

6. Or, on the other hand, the child remains in her mother’s care, with the very real possibility that she will lose her entitlement to have a warm, natural and spontaneous relationship with her father and paternal grandmother, who obviously love her very much indeed, on the basis of nebulous or possibly confected concerns, which have their origins in the parties’ conflicted and acrimonious parenting relationship.

7. X herself is well aware that she is the fulcrum on which the dispute between her parents pivots.  In the most recent family report, prepared in January of 2020, she reported to Mr D that her mother interferes with her relationship with her father.  Whilst Mr Cerwin cries unduly and overly uses the word love when he is with her.  In this context, X’s perception of the ongoing litigation is that her parents fight over me like I am a piece of candy.[9] 

   [9]  See family report dated 14 January 2020 at [46] – [47]

8. For obvious reasons, X’s expressions are not good harbingers for her future state of mental health or long term success at school or any other activities.  Rather, they indicate a distressed and vulnerable child, who throughout several independent assessments, with a variety of family consultants, has expressed contradictory views about her perception of her family.  One thing is clear to me from this tangled skein – X is a child whose loyalties are torn and confused.

9. After having outlined the respective proposals of the parties and the relevant legal principles – regrettably somewhat lengthy and complex – it will be necessary for the court, as best it can, to outline the events, which have brought the parties to this parlous state of affairs and then do its best to interpret these events and, in due course, attempt to fashion the outcome which it believes will best serve X’s interests.  It is not an easy task and fills me with foreboding.

The respective proposals of the parties

1. The mother’s preferred outcome is that the current orders remain as they are, other than any time between the father and X be subject to X’s wishes.[10]  From the father’s perspective, such an outcome would inevitably mean that, due to the mother’s influence, he would inevitably lose his relationship with X.

   [10]  See written submissions filed on behalf of the mother at page 31

2. As a first alternative to this outcome, it is proposed that X continue to live in City B, with Ms Cerwin and spend regular time with her father in Adelaide for one week in each short school holiday and for three weeks during the end of year holiday.  She would pay one leg of the flight between Adelaide and City B and the father would pay the other.

3. In this eventuality, Ms Cerwin would also seek some orders directed towards providing the child with some privacy so far as her ablutions are concerned, when she is with her father and enabling her to access a mobile phone at all times.

4. Ms Cerwin would propose some fixed times for the father to telephone X.  She would also propose some time possibly occurring in City B during school terms and possibly in Adelaide, if Mr Cerwin pays for the travel.  Ms Cerwin would also agree to be bound by an injunction preventing her from taking X to be medically examined other than for a legitimate medical reason or emergency.

5. In the event that there is a change in the child’s living arrangements, Ms Cerwin would want to spend time with X along the same lines as she proposes in her first alternative outlined above.  In the event Mr Cerwin elects to move to City B, she is open to an equal time regime.

6. It is the father’s position that as the evidence available in the case indicates the mother has set about consciously with the intention of alienating X from him, protective concerns justify an immediate change in the child’s living arrangements. 

7. In his written opening, Mr Dillon counsel for the father proposes the continuation of the conferral of equal shared parental responsibility on the parties and that the mother spend time with X for half of each school holiday period, with the costs of travel to be shared.

8. Mr Cerwin has been guarded about the prospect of him moving to City B to be closer to X.  It is most certainly not an outcome he would greet with enthusiasm.  To Mr D, he indicated “if needed he would relocate to City B”.[11]  In his counsel’s opening, Mr Cerwin indicated that his secondary position was that should he relocate to City B the child should live with both parties on an equal shared care basis.[12]

   [11]  See Family Report dated 14 January 2020 at [38]

   [12]  See Case outline of the father at [4]

9. After, Mr D concluded his evidence, in March of this year, Mr Cerwin seemed to indicate his view that it would be impractical and counter-productive for him to move to City B, given the mother’s unabated animosity for him.

Legal principles to be applied

1. Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].

2. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.

3. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

4. When the applicable legislation was originally inaugurated, these considerations were not formally ranked in regards to one another.  They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned. 

5. However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

7. These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.

8. The list of objects or aims of the legislation is set out in section 60B(1). They are as follows:

   “(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

9. The principles, which underpin these objects, are set out in section 60B(2) and are as follows:

   “(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

10. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

11. In the present matter, the following additional considerations contained in sub-paragraphs (a); (b); (d); (e); (f); (i) & (l) are likely to be central.  These subparagraphs deal with the following issues:

    ·The views of the child concerned, in the context of the child’s maturity and any factors influencing such view;

    ·The nature of the child’s relationship with parents and significant other persons, including grandparents;

    ·The likely effects on the child of any change of circumstances, particularly in the context of being separated from a parent;

    ·Practical issues relating to time spending given the current geographical circumstances of the parties;

    ·The capacity of parents to provide for the child’s emotional and intellectual needs;

    ·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;

    ·Whether it would be preferable to make the order which would be least likely to lead to the institution of further proceedings between the parties concerned.

12. In addition, pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

13. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[13] 

    [13]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

14. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[14] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[15] 

    [14]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [15]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

15. The primary considerations are generally to be given more emphasis, arising as they do directly from the aims and principles of the family law legislation.  However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.

16. The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC, whilst acknowledging the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.

17. At the instigation of the proceedings, Ms Cerwin’s emphasis was on protective concerns.  She asserted that there was a significant risk that X might be abused by Mr Cerwin.  On the other hand, it is Mr Cerwin’s position that the court should give pre-eminence to the entitlement X has to have a meaningful relationship with him and the benefits she will derive from such a relationship. 

18. By necessary implication, it is his position that Ms Cerwin has displayed a compromised attitude to the responsibilities incumbent on being a parent by either actively working to undermine his relationship with X or failing to support it adequately.

19. The expression meaningful is not specifically defined in the Act.  It is an ordinary English word.  In Mazorski v Albright[16] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.  Benefit is also a common English word.  It means a favourable or helpful factor or circumstance; advantage, profit.[17] 

    [16]  See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]

    [17]  See the Australian Oxford Dictionary

20. The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives.  As a verb, involve means to participate or share experience. 

21. Accordingly, in my view, the rationale of Part VII of the Family Law Act is that children derive benefits from feeling that their parents are involved or participating in their lives, in a positive fashion.  A child’s life is, by necessary definition, every activity in which the child takes part.  Literally, it means the child’s existence, as an individual. 

22. The aspects of a child’s life, in which a parent can be meaningfully involved, are therefore multifarious.  They include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. 

23. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.  It is these types of interactions, which add significance and value to parent/child relationships and so add meaning to them.

24. The question of beneficial relationships is not to be considered in a retrospective sense.  Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.  I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them. 

25. A relationship does not necessarily become better, if a parent spends more time with a child but, for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”. 

26. It also seems to me that parental relationships will become more meaningful, for the children concerned, if they entail a greater degree of involvement of the parent concerned, in a variety of aspects of the life of the child concerned. In my view, it is significant that the legislature has elected, in section 60B(1)(a), to speak, in unconfined terms, of parental involvement in children’s lives.

27. Abuse, in respect of a child, is defined by section 4(1) of the Act. It means:

    “(a)  an assault, including a sexual assault, of the child; or

    (b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d)    serious neglect of the child.”

28. In this case, at least at the outset of the proceedings, it was Ms Cerwin’s position that X had been sexually assaulted or was at risk of so being by Mr Cerwin.  If so, such behaviour clearly falls within the ambit of the expression abuse.

29. As the case has progressed, it has become her position that a number of factors – including her past experience; her idiosyncratic sensitivities; and the nature of her relationship with Mr Cerwin; – have made her particularly susceptible to being anxious about and protective of X, in the context of a fear of sexual abuse and to have a heightened but not necessarily realistic response to such matters.

30. In addition, also as the case has progressed, it has become Mr Cerwin’s case that the exposure of X to what he would characterise as either Ms Cerwin’s concocted allegations or unrealistic fears also falls within the ambit of abuse in the sense that it has the potential to cause X to suffer serious psychological harm.

31. Accordingly, it would seem to be the case that, as the case has waxed and waned, each party has asserted, to some degree or other, that the other parent represents some sort of risk to X.  As such, the court must attempt to assess the degree of risk arising from the probative evidence mustered by each of the parties, whilst at the same time, examining the qualitative aspects of X’s relationship with each of them.

32. In Deiter & Deiter,[18] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

    [18]  See Deiter & Deiter [2011] FamCAFC 82

33. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

34. The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it.  The court cannot defer its assessment of risk because it is unable to make definitive findings that a harmful event did or did not happen.  In addition, it cannot abrogate its responsibility to assess risk because of deficiencies in the evidence provided to it. [19] 

    [19]  See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]

1. The category of risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and the risk of a child being sexually assaulted or used as an object of sexual gratification.

2. In M & M, [20] a case which is factually congruent with the current matter, because it deals with an allegation of sexual abuse, the High Court formulated a test, which has since been referred to as the “unacceptable risk test” as a means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent.  Essentially the court should not grant time to a parent with a child, if the situation envisaged would expose the child concerned to an unacceptable risk of suffering some form of harm or abuse.

   [20]  See M & M (1988) FLC 91-979 at page 77,081

3. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

   “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”[21]

   [21]  Slater & Light [2013] FamCAFC 4 at [37]

4. Although Ms Cerwin has, to a significant degree, dialled down her concerns that X has been subject to some incident of sexual abuse, I would be naïve to consider that this aspect of her case has completely disappeared.  These were particularly acrimonious proceedings and, as such, neither party gave the other any quarter.

5. As will become apparent, on at least one occasion, Ms Cerwin has vociferously asserted to a family consultant that X has been sexually abused and it would seem to be the case that Ms Cerwin brought X to Adelaide in order to enable the child to make a complaint in this regard either to me personally or a court official.  In addition, the child has been taken to police, ostensibly to make some form of complaint in this regard. 

6. Accordingly, I do not consider that the issue of sexual abuse has gone away, although I have previously addressed the issue, at an earlier stage of proceedings, in the context of an interim ruling.[22]  In these circumstances, I will detail, as best I can, once again, how the court is directed to approach cases involving issues of sexual abuse.

   [22]  See Cerwin & Cerwin [2018] FCCA 3339

7. Cases involving allegations of sexual abuse of children are particularly difficult, for obvious reasons.  The first being that the only persons who are aware of what has actually occurred are invariably the victim of the abuse and its perpetrator.  The former is a child, who may not have fully developed verbal and cognitive skills; and the latter is not likely to be inclined to be forthcoming about what has occurred.

8. In addition, independent forensic evidence pointing to the fact that sexual abuse has occurred may not be available.  As such, is it may not be possible for the court to make a definitive finding, one way or another, whether sexual abuse did or did not occur. 

9. It is for these reasons, the court’s focus is on protecting children from the risk of sexual abuse rather than ascertaining whether abuse did or did not occur.  This, of itself, creates the potential for further dilemmas to arise, some of which are present in the current case.

10. Although, very often, the evidence surrounding issues of sexual abuse is problematic, the court must still attempt to analyse, as best it can, all the available evidence, because the consequences of getting any case, involving abuse allegations, wrong are potentially horrifying.  On the one hand, the potential detriment to a child, of being subjected to sexual abuse, represents:

    “…the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development.  Its effects, in both the short and long term, can be devastating.”[23]

    [23]  Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 at [94]

11. On the other hand, it may be equally emotionally devastating to a child to deprive him or her of a loving and worthwhile relationship, with a parent, on the basis of a risk which is nebulous or elusive in nature, but may remain very real and concrete in the mind of the other parent concerned. 

12. In addition, in some cases, allegations of sexual abuse (and subsequent allegations that some manipulation of a child has occurred in order to secure some form of damaging disclosure) occur in the aftermath of relationship breakdown or where the parents concerned communicate poorly, if at all, because of antipathy and suspicion.

13. For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or indeed be manipulated.  Regrettably, it is also not unknown for allegations of sexual abuse to be made for tactical or mischievous reasons.  It may be difficult to differentiate between these various scenarios and in some cases there may be a conflation of them.

14. As Fogarty J said in N&S and the Separate Representative:

    “…courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation.”[24]

    [24]  See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (supra) at [95]

15. In W & W (abuse allegations: unacceptable risk) the Full Court summarised a number of authorities dealing with abuse allegations  and provided guidelines to the assessment of unacceptable risk, which can be summarised as follows:

    ·The unacceptable risk test requires the court to give real and substantial consideration to the facts of the case concerned in determining whether there is or is not an unacceptable risk of harm befalling a child;

    ·In so doing, the sorts of questions, which the court should pose for itself, in respect of the allegations concerned, include the following:

    oWhat is the nature of the events alleged to have taken place?

    oWho has made the allegations?

    oTo whom have the allegations been made?

    oWhat level of detail do they involve?

    oOver what period of time are the events alleged to have occurred?

    oWhat are the effects exhibited by the child?

    oWhat is the basis of the allegations?

    oAre the allegations reasonably based?

    oAre the allegations genuinely believed by the person making them?

    oWhat expert evidence has been provided?

    oAre there satisfactory explanations for the allegations apart from abuse?

    oWhat are the likely future effects on the child concerned?

    ·The weight to be attached to the answers arising from these questions will vary from case to case.

16. Clearly, over many years, Mr Cerwin and Ms Cerwin have had a poor and mistrustful relationship with one another, harking back to the unilateral relocation of both Mr C and X to City B and the unresolved issues relating to the allegations of physical abuse of Mr C.

17. The resolution of the case in August 2013 did not, in my view, reduce to any significant degree, the mistrust between Mr Cerwin and Ms Cerwin.  Rather the issues arising from the payment of X’s travel between City B and Adelaide heightened rather than diminished tensions between the parties.

18. In my view, these difficult and contentious circumstances, when coupled with some idiosyncratic aspects of Ms Cerwin’s personality, have produced a situation likely to be conducive to the production of allegations of misconduct.  As previously indicated, there is likely to be a grey area arising between a person carelessly believing what he or she wants to believe and the wholesale fabrication of allegations.

19. In addition, parents are naturally inclined to be highly protective of their children.  As such, it is a natural incidence of human endeavour to fear the worse, even when, in objective terms, the worse is unlikely to occur. 

20. For obvious reasons, fears are liable to multiply and increase in their intensity, when there are no mechanisms available for them to be neutralised through open and frank discussion.  In a case, such as the present one, Ms Cerwin has no capacity whatsoever to discuss her fears with Mr Cerwin in a rational and calm fashion.  Rather she (and indeed Mr Cerwin to some extent) regards the other as an enemy.

21. In such circumstances, parents must take great care to avoid embroiling any impressionable child in such an adult scenario or enlisting the child to advance any particular agenda.  For reasons, upon which I will expand, I do not consider that Ms Cerwin was either inclined to take such precautions or indeed able to do so, given her animus for Mr Cerwin.

22. It is the current theme of Ms Cerwin’s case that although what she has done in the case may be open to criticism in objective terms, when her subjective situation is considered, her actions are, at the very least, explicable.  In B and B [25] the Full Court said as follows:

    “…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection.  As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”

    [25]  B & B (1993) FLC 92-357 at 79,780

23. The problem Ms Cerwin faces in respect of advancing a submission that she was driven by her personal anxieties in respect of X, is that it is not supported by any independent expert evidence.  I accept that she is both an anxious and highly protective parent.

24. At the same time, my assessment is that she is also a manipulative person, who is extremely poorly disposed towards Mr Cerwin, the subject of her allegations.  In these circumstances, there is scant evidence to indicate what level of insight she had derived in respect of her now stated position that she accepts that she has been mistaken in respect of her past attitude in the case.

25. In these circumstances, in the reasons which follow, it is my view that the pendulum points more towards a malicious fabrication of allegations than a hysterical over-reaction to a difficult and conflicted parenting situation, on Ms Cerwin’s part.  Although, once again, I concede that it is difficult to establish a clear point of demarcation in this regard.

26. The issues in this case are complex and have arisen over an extended period of time.  In analysing the allegations of abuse laid against Mr Cerwin, I consider that I must ponder the sort of questions posed by the Full Court in W & W.

27. Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

28. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

29. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

30. The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm. 

31. Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.

32. By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.

33. If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents.  Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality. 

34. The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)].  It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week. 

35. More significantly, it is time which enables a parent to be involved in a child’s daily routine and on occasions and events, which are of particular significance to the child concerned. 

36. Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings. 

37. In this particular case, the parties agreed that they would be conferred with equal shared parental responsibility for X, when the consent order of August 2013 was made.  The mother appears to accept that this should continue, notwithstanding the rancour characterising the current proceedings.  Mr Cerwin has indicated the same position. 

38. However, it is implicit in the evidence of each of the parties that their circumstances are far from conducive to them exercising parental responsibility for X in any cooperative or empathetic fashion.  Axiomatically, they do not communicate well and mistrust one another to a marked degree.

39. In addition, at the earlier stage the practical implications of the presumption were largely academic, given Ms Cerwin and X were living in City B and Mr Cerwin was living in Adelaide and had no plans to move to City B.  As such, it was clearly impracticable for there to be either an equal time or substantial and significant time regime in respect of X’s care. 

40. Although it is not his preference, Mr Cerwin has at least considered the possibility of moving to live in City B.  In addition, such an outcome was canvassed by Mr D in both the second family report (15 October 2018) and the third family report (14 January 2020).

41. Issues of relocation have been present in the case since its inception.  As such, issues of parental mobility and personal autonomy have intersected with considerations of what is the best outcome for X personally. 

42. The best outcome for X is likely to be one in which she can have a comfortable relationship with each of her parents, without exposure to undue conflict.  Such an optimal outcome would require Mr Cerwin to move to City B, although he does not wish to do so.  As Gummow & Callinan JJ pointed out in U v U

    “[m]aternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.”[26]

    [26] Ibid at 89,091

43. Mr Cerwin owns a house in Adelaide.  His work is also based in Adelaide, although his evidence is that he is able to do much of it remotely.  More significantly, his elderly mother – she is in her mid-eighties – lives in Adelaide and he is extremely solicitous of her needs.  As such, I accept that it will be extremely onerous for him to move.

44. Clearly, Ms Cerwin herself is hardly likely to greet the prospect of Mr Cerwin moving to City B with any great enthusiasm.  However, she herself has canvassed it as one possible outcome in the case.  Accordingly, if the presumption is applied, the court is obliged to consider firstly an equal time regime and then a substantial and significant time regime.

45. Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.

46. The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from section 65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made (and with equal effect a substantial and significant time order).

47. The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. This is because section 65DAA(1) & (2) are expressed in “imperative terms” and oblige the court to consider both questions.  The affirmative answer to both being an essential jurisdictional fact before an equal time or substantial and significant time order is made.

48. Accordingly, courts such as this, are directed to consider the reality of the situation which confronts parents and children, not merely whether it is desirable, in the sense of facilitative of the child’s best interests alone, that an order be made for equal time to be spent by the child with each parent.  Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[27]

    [27]  See MRR v GR (2010) 240 CLR 461 at [13] & [15]

49. In these circumstances, a proper consideration of what is feasible requires the court to consider the circumstances of both parties.  In the current matter, the return of Mr Cerwin to City B would remove the geographical impediment to an equal time regime.  However, all the other problems, in the parties’ parenting relationship would still remain, namely their long-standing communication problems and resulting difficulty in resolving issues to do with X’s care. 

50. More significantly, there are likely to be questions arising as to how X herself would cope emotionally with such a significant change in her care arrangements and the possible consequence of being exposed to a conflicted relationship between her parents.

51. Notwithstanding the presumption and whether it is or is not applied, it is open to the court to make whatever order it considers will best serve X’s interests, including an order for equal time regardless of the deficits implicit in the parties’ parenting relationship.

52. The legislative pathway, which was delineated by the Full Court in Goode & Goode can be summarised as follows:

    ·The court is to consider the section 60CC matters relevant; then

    ·Decide whether the presumption in section 61DA should be applied or, if it is rebutted because:

    Ø there are reasonable grounds to believe abuse or family violence has occurred;

    Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;

    ·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;

    ·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;

    ·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);

    ·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.

    ·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

1. Ms Cerwin has consistently maintained her view that Mr Cerwin is a flawed and dangerous person.  This view is longstanding and firmly entrenched.  It is unlikely to be changed at any time in the foreseeable future.  As such, it is likely that Ms Cerwin will stop at nothing to ensure that X’s relationship, with her father, is truncated, as much as possible. 

2. X undoubtedly loves her mother.  The evidence available to me indicates that she is also firmly aligned with her mother, at present.  Accordingly, in my view, notwithstanding the possible intercession of a longstanding moratorium, in respect of contact between X and her maternal family, if X moves into the care of her father, the next stage of her life will be marked by a bitter battle for possession of her heart and mind, in which Ms Cerwin is more likely than not to prevail because of the level of determination she has already demonstrated. 

3. This victory is likely to come at a high emotional cost for X personally.  Her childhood, already characterised by division and conflict will become more rather than less riven.  The dilemma in the case is that X’s relationship with one of her parents is likely to continue to be fraught with all manner of difficulties, as her teenage years unfold, with myriad implications for her emotional health and development. 

The additional considerations

a)      The child’s views

1. The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding.  The legislation speaks of views rather than wishes.  The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[66]

   [66]  See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56

2. Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in any particular case.  Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with. 

3. However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her.  Very often these perceptions will be ambivalent and difficult to express or quantify.  This is particularly so with younger children.  This does not mean that a child’s view should be disregarded.

4. To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these.  It is often said that children have a right to be heard.  Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[67]

   [67]  See H v W (1995) FLC 92-598 at 81,944

5. It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case.  Matters of individual preference are idiosyncratic but no less important for that.  It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”.  What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[68]

   [68]  See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724

6. Whenever X’s views have been canvased by a professional person, such as a family consultant or medical practitioner, she has been consistently negative about her father.  At best, she has referred to his household as boring at worst she has made more sinister complaints.  In addition, from time to time, she has had a litany of complaints about various aspects of her father’s house, which have ranged from its state cleanliness to the furnishings in her bedroom.

7. In my assessment, although some of these complaints may have a basis in X’s own experience, their likely aetiology is the mother’s hostility for Mr Cerwin, which X feels compelled to replicate.  Her verbal account of her relationship with her father is not consistent with her behaviour, with him, as observed by Mr D, over the course of the three family reports commencing in 2013 and concluding in early January of 2020.

8. However, on balance, it seems more likely than not that X personally would prefer to remain living with her mother, in City B, where she can see her brother Mr C and maternal grandparents regularly and where she has many friends in the community.  For obvious reasons, X is likely to prefer the known to the unknown and to wish to avoid the possibility of her current life being turned upside down. 

9. However, in my view, it would be inappropriate that X’s preferences be given a high degree of priority in this case.  Given her age and what I accept is a lack of emotional and intellectual maturity on her part, X is not in a position to know what is best for her.  In particular, I accept that it is emotionally unhealthy for her to be placed in a position in which she is the metaphorical judge and jury in respect of her father’s conduct towards her and to extend the metaphor her mother is the prosecutor.

10. In this context, any order which authorises X to be able to spend time, with her father, subject to her wishes, is destined to end in failure.  I accept Mr D’s view, in this regard, that X has been placed in a role where she perceives that she is responsible for her mother’s wellbeing.  As a consequence, if given a choice, she will follow her mother’s directive to her. 

b)       The nature of the child’s relationship with each of her parents and significant others

1. At this juncture, it is clear to me that X’s most significant relationship, at this stage of her development, is that which she shares with her mother, who has been her primary provider of care for the vast majority of her life and certainly since her parents separated in late 2012.

2. In what must be regarded as extremely difficult circumstances, Mr Cerwin has been able to maintain his relationship with X, whom he loves deeply.  It also seems to me to be probable that X too loves her father, although it is extremely difficult for her to express this love, when there is any suggestion that such an expression will come to the notice of her mother.  This can be the only explanation for X’s statement, to Mr D, that her mother interferes with her relationship with her father. 

3. X is acutely aware that her mother dislikes her father and her father, in turn, dislikes her mother.  In such a situation, X is placed in the invidious situation in which she feels that she is compelled to choose between them.  This is an emotionally untenable situation for any child.

4. Indeed, one of the sadder, if not the saddest aspect of this case, is that the court too is faced with such a dichotomy.  It too much make an election, which will involve the potential for X to lose her relationship with one of her parents.  At this juncture, if X is forced to choose between her parents, it seems more likely than not that she would choose her mother, regardless of whether such a choice is either rationally or fairly based.

5. Neither party, in this case, elected to call evidence from X’s grandparents.  I note, however, that the paternal grandmother was present during the entire court case and was at times driven to tears.  The maternal grandparents also attended to provide support for Ms Cerwin and each appeared to be vitally interested in the case.  As previously noted, the maternal grandfather was charged with facilitating some handovers, which he accomplished, to his credit.

6. Accordingly, it seems probable that X has significant relationships with her grandparents on each aspect of her family.  However, as a consequence of their greater involvement in her life, up to this stage, her relationships with the maternal grandparents are likely to be the more significant ones. 

7. One of the major deficits of the father’s proposal is that would likely impinge on X’s relationship with her brother, Mr C.  I accept that the two are emotionally close.  I also accept that, from Mr Cerwin’s perspective, he fears that what occurred so far as his relationship with Mr C is concerned, it will inevitably be replicated, in his relationship with X, if the mother’s application is successful. 

8. Just as Mr C was instrumental in persuading the court at the interim hearing stage, in 2013, to permit X’s unilateral relocation to City B, so is her relationship with her half-sibling a significant factor, from the mother’s perspective,  in support of her contention that it would be contrary to X’s best interest for the siblings to be separated.

9. In this context, I note that Mr C is now a young person, whom one would anticipate has a range of friends outside his immediate family, who are very significant.  In the jargon, he is likely to be at a stage of his development when he wishes to individuate from his mother and sister.  I also note that I have not been provided with any independent evidence regarding how close emotionally are the two siblings.

10. However, I would except, given they have shared the same household for many years, they know and love each other well, regardless of the fact that it is likely Mr C will be leading a more independent life, which is distinct from his younger sister.  However, as in 2013, issues to do with Mr C favour Ms Cerwin’s position.  In this context, I note Mr Cerwin’s position that Ms Cerwin has used Mr C, as an instrument, to advance her own interests, to the detriment of his own (and indeed Mr C’s).

c) The extent to which each of the parents has taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the child

1. This is not a relevant consideration in the case.  The evidence indicates that Mr Cerwin has always wished to participate in every aspect of decision making concerning X and to spend time regularly with her.  In contrast, in my assessment, the evidence indicates that Ms Cerwin has, from time to time, done everything open to her, in order to restrict Mr Cerwin from being an influence in X’s life. 

ca)    Financial support

1. This was not a case which focussed on financial issues, other than Ms Cerwin’s resentment regarding the requirement that she contribute a significant level of funds in respect of X’s regular travel between City B and Adelaide. 

2. However, she agreed to this order, which by necessary implication was part of the process of negotiation, which led to Mr Cerwin agreeing to X’s permanent relocation to City B, which was not in keeping with the recommendation then made by Mr D.

d)     The likely effect of any changes in the child’s circumstances

1. Issues to do with change are at the core of this difficult matter.  Essentially what will be the effects on X, particularly in terms of her relationship with her father, if she remains living in City B and vice versa, if she moves to live in Adelaide, with her father. 

2. Again, I agree with Mr D’s assessment that whatever option is preferred, it will have invidious and most likely unpredictable consequences, so far as X is concerned, none of which are likely to be positive. 

3. On the one hand, if X continues to live, with her mother, in City B, her relationship with her father will continue to be placed under strain.  Ms Cerwin is unlikely to accept that Mr Cerwin does not pose a threat to X and, in such circumstances, she will continue to search out for (or quite conceivably manufacture) some incriminating evidence concerning him.  For obvious reasons, X herself is likely to be the focus of this search, which will be emotionally detrimental to her.

4. On the other hand, if X comes into her father’s care, she will be resentful and angry.  In addition, she will perceive that she has abandoned her mother.  In these circumstances, she will be difficult to parent and may experience extreme difficulties in transitioning to her new life.  How she would react to not being able to see her mother, for an extended period of time, is uncertain, but I doubt that it would be positive in nature. 

5. In essence, as previously examined with Mr D, the court must examine, which is the least bad of these options.  It is not an easy task and fills me with apprehension.  I am well aware of the moment of the decision concerned for X now and so far as her future development is concerned.

6. The essential question being, is the trauma of wrenching X away from the environment, in which she is well settled, a price worth paying in order to ensure that she has a meaningful level of relationship with her father.  In this context, one of the central problems of the case is that such a dramatic change may not necessarily result in such an outcome achieved but could result in the opposite and may lead to X becoming more resentful and negatively inclined towards her father. 

7. In my view, this is a very real risk.  In such circumstances, it is necessary for the court to consider whether the maintenance of the current arrangements, tenuous and fragile though they may be, is the better option for X, in the short to medium term.  In this context, I note that X has apparently spent time with her father in each of the school holiday periods since the October hearing. 

8. Certainly, I have not been advised of any specific difficulties with this time or told that it did not occur.   Perhaps naively, I have hoped for the best and assumed that there has been a positive outcome.  In the past, Mr Cerwin has not been tardy in bringing his concerns to the court.  However, I cannot be certain in this regard.

9. In addition, although I have not been provided with any actual evidence in respect of it, Ms Cerwin has apparently undertaken some process of therapy to help her come to terms with her anxiety arising from X spending time with her father.  These are positive, if as yet not fully assessed outcomes which nonetheless militates against the extreme outcome of changing X’s place of residence. 

10. X has recently turned thirteen years of age.  She is a teenager, who is likely to have a well-defined sense of entitlement and a perception that she should be allowed to be the master of her own destiny.  Although Ms J and Mr M were able to facilitate her leaving the court, with her father, in May of 2019, this can hardly be described as an easy or seamless exercise.

11. I envisage that, given the effluxion of time, any mechanism by which X moves into the predominant care of her father, is one likely to be fraught with all manner of difficulties and meet with X’s stringent opposition.  Ms Cerwin herself is hardly likely to remain passive towards it.  In practical terms, how such a conflicted transition is to be managed is unclear to me.  As such, I fear inflicting emotional damage on X.

12. As such, the maintenance of the status quo has some appeal to me but, at the same time, I must be aware of the cost of such a status quo, in terms of the maintenance of a viable relationship between X and her father.

e) The practical difficulty and expense of a child spending time with a parent

1. In late 2017, after a period of around five years during which X had been able to successfully travel regularly between City B and Adelaide to spend time with her father, conflict arose between the parties, which ostensibly related to the provision of the necessary airfares to enable this travel to occur. 

2. The tenor of much of Ms Cerwin’s correspondence, at the time, is that she was resentful that she was required to pay more of X’s travel expenses than was Mr Cerwin, which therefore arises being whether a more equal division of the cost will go some way to easing the tension and resentment between the parties. 

3. In this context, I note that Ms Cerwin has deposed to having longstanding concerns about Mr Cerwin’s care of X and further that her withholding of X coincided with X reaching an age at which Ms Cerwin considered her (X’s) views would become the determining factor as to whether she did or did not spend time with her father.  In these circumstances, it seems improbable that the resolution of financial issues will lead to any significant easing of the tensions between the parties, given the undoubted damage these protracted proceedings have done habitually conflicted parenting relationships.

4. In my view, the evidence indicates that the mother has utilised the logistical issues relating to X travelling to Adelaide to spend time with her father as a flash-point in her struggle to exclude Mr Cerwin from X’s life. 

5. I do not accept that X has any anxiety about flying per se, rather her extraordinary behaviour, at the airport, which I note has not been supported by the account of any independent person, is almost certainly the product of her mother’s manipulation. 

6. In practical terms, given the past history of the matter, it should not be logistically difficult for X to travel regularly between City B, Adelaide and return, apart from cost issues.  This was the pattern of her life until late 2017.  In addition, it would appear to be the case that, since October of last year, X has been able to resume this regime of travel, without emotional difficulties. 

7. As such, in purely practical terms, there are no impediments to X being able to spend regular periods of time, with each of the parents, regardless of where she lives.  Whatever difficulties arise – and they are likely to be significant – these difficulties will relate to the parties’ severely compromised parenting relationship and lack of trust for one another.

8. However, in this context, over a significant period of time, Mr Cerwin has demonstrated that he is the superior parent, so far as the making of the necessary travel arrangements is concerned.  He has also indicated a willingness to travel to City B, when required, in order to spend time with X.  As such, his devotion to X cannot be called into question. 

f)  The capacity of each of the child’s parents to provide for the child’s emotional and intellectual needs

1. I am satisfied that the unrealistic and distorted view Ms Cerwin holds of X’s father creates an unhealthy emotional environment for X to grow up in.  It is not healthy for X to be exposed to Ms Cerwin’s distorted vision of Mr Cerwin, which is not congruent with how she has experienced him during earlier phases of her life.

2. The evidence also indicates that X has had a broken record of attendance at school.  This was not an issue which received a great deal of attention during the hearing, given the focus on matters relating to allegations of sexual abuse.  However, it is not an indicator that Ms Cerwin is significantly the better parent, so far as scholastic issues are concerned.

3. Mr Cerwin has actively made contact with officials and teachers at X’s school, when he has been able to do so, relying on the court’s conferral on him of shared parental responsibility for X.  Accordingly, I accept that he is interested in educational issues pertaining to X and would be well-motivated to support X’s education, if she came into his predominant care.

4. In general terms, given these matters, I consider that Mr Cerwin is better placed to provide for X’s emotional and intellectual needs, in general terms.  Certainly, he is likely to be more supportive of X maintaining a relationship with her mother than vice versa. 

5. That is not say that X does not derive a great deal of emotional sustenance from her mother.  Undoubtedly the two are very close indeed.  In this context, it is interesting to note Mr D’s somewhat throw away comment that the two interacted more like sisters than mother and daughter.

g)     The child’s maturity, sex, lifestyle and background

1. In my view, X age, when set against the protracted nature of these proceedings, is a significant factor.  She is now around 13½ years of age.  This most recent round of proceedings commenced in early 2018, when she was 11.  The final hearing aspect of the case has occupied around a year. 

2. I acknowledge that part of that delay arises as a consequence of the time taken for me to write the judgment.  In my view, other significant delays have arisen as a consequence of how the mother has conducted the proceedings.  She sought to adjourn the trial on two occasions whilst she sought to obtain evidence that supported her allegations of sexual abuse.  This evidence was not forthcoming. 

1. The stance she has taken in the proceedings has been largely reactive to the case mounted by the father, when she has made allegations, these have been inchoate and delayed.  There has been nothing straightforward about the matter, which has been bitterly contested.  Mr Cerwin has contributed a large sum to it; whilst Ms Cerwin has been legally aided. 

2. However, the fact remains, during this period, X has remained in the care of her mother, whilst she has gone through a process of incremental maturation.  She remains strongly aligned with her mother.  This effluxion of time, in my view, makes it significant more difficult for the court to contemplate the dramatic change in arrangements for her care envisaged by Mr Cerwin.

3. Notwithstanding the issues of alienation; emotional manipulation; and potential systems abuse; it is difficult to contemplate that the forced and traumatic relocation of a resentful teenager would be in X’s best interests.  In my assessment, given the child’s age and circumstances, it is too late for such an outcome to be a feasible and beneficial outcome for X, notwithstanding the implications this has for the nature of her relationship with her father.

h)     Aboriginality

1. This is not a relevant consideration in the case. 

i)      The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the parties

1. In my estimate, each of the parties aspire to being a good parent.  Clearly, they bring different experiences and backgrounds to that task.  I have no reason to believe that X is not appropriately cared for, in physical terms, and loved in each of her parent’s respective homes.

j) & k)  Family violence and any family violence order

1. For the reasons outlined above in respect of the primary considerations, I do not consider that this a case which centres on the protection of the children from the corrosive emotional consequences of exposure to family violence.  There is no relevant family violence order.

l)      Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

1. Finality is generally preferable in children’s cases.  Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned.  In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation. 

2. The parties’ parenting relationship is poor and likely to remain so, for the indefinite future, whatever order is made.  This is not a good harbinger for the avoidance of future litigation between the parties in respect of the care arrangements for X. 

3. If X moves into Mr Cerwin’s immediate care, it can be anticipated that there will be a strong reaction from Ms Cerwin, who is unlikely to meekly accept such a decision.  I do not wish to appear disrespectful but, from what I know of her disposition, I suspect she would begin to plan on how to reverse such a decision.  Inevitably this will involve X, by whatever means occur to Ms Cerwin, most probably further allegations of abuse.

4. The only measure which can be truly effective against such a campaign would be a total cessation of relationship between X and her mother, which, given X’s age and the centrality of this relationship to her, does not appear to me to be a viable option.  Accordingly, the father’s position seems to one which would be highly likely to lead to further bitter litigation centring on X and probably involving multiple interventions.

5. On the other hand, Mr Cerwin too has shown himself to be a determined litigator.  He has devoted a significant sum of money, which he can ill-afford to the pursuit of his relationship with X.  He too is unlikely to meekly abandon his relationship with her.  If his future relationship, with X is jeopardised, it seem highly probable that he will want to return to court and, if appropriate seek that the court sanction Ms Cerwin, if it finds she has breached court orders.

6. In these circumstances, the best option to avoid further litigation is one which facilitates a return to the uneasy status quo, which prevailed between 2013 and 2017 and which saw X travelling regularly between City B and Adelaide. 

7. The central question is how can the court ensure that Ms Cerwin abides by her obligations in respect of such an arrangement and does not fall back into either consciously or tacitly trying to influence X into thinking something untoward is occurring?

8. For reasons already provided, I have some doubt as to whether these bitterly contested proceedings have had any influence in changing Ms Cerwin’s views.  Certainly, there were no such indications when she was interviewed by Mr D earlier this year. 

9. However, in the context of the orders which were made regarding Mr Cerwin’s on-going time and the indication that Ms Cerwin was engaging in some form of therapy to address her issues regarding the father spending time with X, there were some signs supportive of Ms Lindsay’s submission that Ms Cerwin had been honestly but mistakenly convinced that X had been abused and was open to acknowledging such a state of affairs in conjunction with psychological treatment.

10. Ms Lindsay contends that Ms Cerwin should not, in effect, be sanctioned on the basis that she has contumaciously disregarded court orders and manufactured allegations.  Rather, the court is required to take into account the state of mind of client, particularly in the context of the fact that she has been X undisputed primary carer for many years and has a particular susceptibility to issues relating to the safety of children.

11. The problem with this submission is that I have not been provided with any evidence from the psychologist concerned and it is not congruent with the position adopted by Ms Cerwin during the majority of the proceedings.  In my view, for the counselling to be successful, the therapist concerned needs to be equipped with the necessary information to rebut Ms Cerwin’s world view, which has the capacity to be beguiling, so far as professionals are concerned. 

12. In my view, the evidence indicates that Ms Cerwin is more than capable of co-opting professional people to her way of thinking by presenting a compelling narrative, to those selected by her, that she and X have been the victims of professional incompetence or malfeasance.  Therapy that provides only a confirming echo chamber of Ms Cerwin’s grievances will not be at all helpful.  Ms Cerwin must be challenged.

13. The greatest danger of the maintenance of the status quo is that, once the pressure of these proceedings, with the threat of care arrangements for X being changed, is removed, Ms Cerwin will return to her previous stance in respect of court orders, either because she will again fabricate her concerns or irrationally believes that something sinister is occurring.

14. The remedies I propose in respect of these issues are as follows:

    ·Payment of airfares be equally shared so this source of potential resentment is removed;

    ·Orders ensuring that any application, including a contravention, instigated by Mr Cerwin, in respect of a breach of the orders be listed expeditiously;

    ·That these reasons for judgment be provided to Ms Cerwin’s psychologist;

    ·A family consultant, pursuant to section 65L be appointed to give assistance to the mother to comply with these orders; and

    ·To this end an appointment be made for the time spending orders to be explained to X and Ms Cerwin, by the family consultant so appointed, in the most practical way appropriate, including by video conference facility;

    ·Delineating more completely the obligations parents have when exercising joint parental authority and to mandate each parent being required to inform the other of all medical appointments attended by X and the reason for such appointments.

Conclusions

1. This is a case which has no easy or obvious solution.  I have reached the conclusion that it is more likely than not to be too disruptive and emotionally destabilising for X, at her age and stage of development, to be removed from the care of the parent who has been the principle provider of her care.

2. In simple terms, I consider that it would be too traumatic for her and likely to lead to even more extreme conflict between her parents.  She is now likely to be too closely aligned with her mother to make such a difficult transition viable, notwithstanding Mr Cerwin’s skills as a parent and his undoubted love and devotion for X.  I just do not think it would work.

3. At the end of the day, the case is about X’s best interests, not the rights of her parents.  Notwithstanding my sympathy for Mr Cerwin and my finding that he has been falsely maligned and his entitlements to spend time with X, pursuant to court order, frustrated, X is not to be utilised as a tool to punish Ms Cerwin.

4. Although, I accept that the witness box is a far from perfect mechanism to assess the character of a person, I found Mr Cerwin to be a decent and honest person.  His love for X was palpable.  He was not motivated by any sense of vendetta against Ms Cerwin for bringing this case.  Rather, he did so because he considered it best for X.

5. As such, a consistent, stable and on-going relationship with her father is an essential component required for X to become a well-adjusted adult.  X needs to know her father and paternal grandmother, so that she will have a fully realised sense of who she is and where she comes from and most importantly know that her father and paternal grandmother love her.

6. It is also, notwithstanding my various criticisms of her, difficult not to feel some sympathy for Ms Cerwin.  I accept that she was traumatised, as young adult, when a person she loved was murdered.  She presents as a person who mistrusts the world and feels powerless in it. 

7. However, it is not her decision as to whether X should have a relationship with her father or not and she should be empowered to do so merely on the basis of her own emotional fragility.  More importantly, she is not entitled to truncate this relationship because of her antipathy for Mr Cerwin. 

8. Although I consider it possible that Ms Cerwin believed, at some visceral level, that Mr Cerwin did pose some form of threat to X, I also consider that there was a certain level of manipulation and connivance, in how she chose to vent her various allegations, which were intended to frustrate Mr Cerwin because she does not like him.

9. Accordingly, at the end of this too long judgment, I have come to the conclusion that I should essentially retain the 2013 orders.  Although the parties will have extreme difficulty in exercising any form of shared parental responsibility for X, it would not be in her best interests for a loving and thoughtful parent, in the form of Mr Cerwin, to be excised from being involved in discharging parental responsibility for X.

10. Finally, I do not consider that a shared care regime, based on Mr Cerwin moving to City B is currently a viable option, given the relationship between the parties.  It would most likely lead to X being exposed to more rather than less conflict between her parents.  In any event, the impression I have is that Mr Cerwin himself does not believe that it is feasible for him to move away from Adelaide and his mother at this stage.  I am not critical of him, in any way, in respect of this.

11. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment

I certify that the preceding five hundred and ninety four (594) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:             31 August 2020