Crestwell and Judd
[2007] FamCA 645
•27 June 2007
FAMILY COURT OF AUSTRALIA
| CRESTWELL & JUDD | [2007] FamCA 645 |
| FAMILY LAW - CHILDREN - With whom a child lives – Allegations of sexual abuse/ inappropriate behaviour by father – Previous allegations of sexual abuse of mother’s child from previous relationship – Father acquitted in District Court of unlawful sexual intercourse with mother’s child - standard of proof required to establish sexual abuse - Briginshaw v Briginshaw – Whether unacceptable risk to child of sexual abuse or inappropriate behaviour – Satisfied father did not sexually abuse child and no unacceptable risk to child FAMILY LAW - EVIDENCE - Transcript of evidence from criminal trial tendered by consent - Use to be made of transcript and “tendency” evidence in family law proceedings FAMILY LAW - CHILDREN – With whom child lives – Relocation – Mother previously removed the child from place of residence in breach of injunction and has not returned – Father has supervised contact once per month – Mother wishes to remain where she now lives – Father seeks return of child – Child exhibiting behavioural and social difficulties - Order: mother to return child – Gradual progression to child spending alternate weeks with each parent |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 69ZX Evidence Act 1995 (Cth) ss 97 & 140 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Bolitho and Cohen (2005) FLC 93-224 |
| APPLICANT: | Mr Crestwell |
| RESPONDENT: | Ms Judd |
| FILE NUMBER: | ADF | 1760 | of | 2003 |
| DATE DELIVERED: | 27 June 2007 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 30 October 2006 to 2 November 2006 & |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs Read |
| SOLICITOR FOR THE APPLICANT: | Dixon Gallasch |
| COUNSEL FOR THE RESPONDENT: | Mrs West |
| SOLICITOR FOR THE RESPONDENT: | Nelson & Co. |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Noble |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Legal Services Commission of SA |
Orders
That all previous orders made in relation to the child A born … July 1996 be discharged.
That the mother and the father have equal shared parental responsibility for the said child.
That by 27 August 2007 the mother relocate the principal place of residence of the said child to the metropolitan area of Adelaide.
That until 26 October 2007 the said child live with the father as follows:
a.From 10:00am to 5:00pm on Saturday 14 July 2007 in Adelaide with handovers at the H Children’s Contact Service.
b.From 10:00am to 5:00pm on Saturday 11 August 2007 and on Sunday 12 August 2007 in Adelaide with handovers at the H Children’s Contact Service.
c.From 9:00am on Saturday 1 September 2007 until 5:00pm on Sunday 2 September 2007 in Adelaide.
d.From 5:00pm on Friday 14 September 2007 until 5:00pm on Sunday 15 September 2007 in Adelaide.
e.From 5:00pm on Friday 28 September 2007 until 5:00pm on Monday 1 October 2007 in Adelaide.
f.From 5:00pm on Wednesday 10 October 2007 until 5:00pm on Sunday 14 October 2007.
and the said child live with the mother at all other times.
That SAVE AND EXCEPT during the Christmas school holiday period in each year the said child live with the father from the conclusion of school on Friday 26 October 2007 until the conclusion of school on the following Friday and during the same times in each alternate week thereafter PROVIDED THAT during all school holiday periods SAVE AND EXCEPT during the Christmas school holiday period the handovers take place at 4:00pm on each Friday with the parent with whom the said child has been living delivering the said child to the residence of the other parent.
That SAVE AND EXCEPT during the Christmas school holiday period in each year the said child live with the mother from the conclusion of school on Friday 2 November 2007 until the conclusion of school on the following Friday and during the same times in each alternate week thereafter PROVIDED THAT during all school holiday periods SAVE AND EXCEPT during the Christmas school holiday period the handovers take place at 4:00pm on each Friday with the parent with whom the said child has been living delivering the said child to the residence of the other parent.
That the said child do live with the father during the first half of the 2007/2008 Christmas school holiday period and during the same times in each alternate Christmas school holiday period thereafter.
That the said child do live with the mother during the second half of the 2007/2008 Christmas school holiday period and during the same times in each alternate Christmas school holiday period thereafter.
That the said child do live with the mother during the first half of the 2008/2009 Christmas school holiday period and during the same times in each alternate Christmas school holiday period thereafter.
That the said child do live with the father during the second half of the 2008/2009 Christmas school holiday period and during the same times in each alternate Christmas school holiday period thereafter.
That all handovers during any Christmas school holiday period take place at the residence of the parent with whom the child is commencing to live.
That after 26 October 2007 the times the said child lives with each of the parties shall be subject to the following special arrangements:
a.The child do live with each party for one half of each Christmas Day at times to be agreed between the parties.
b.On the child’s birthday the said child live with the party with whom she is not living at the time for a period of 3 hours at times to be agreed.
c.In the event that the said child is living with the mother at the time, the said child live with the father from 9:00am to 5:00pm on Father’s Day in each year.
d.In the event that the said child is living with the father at the time, the said child live with the mother from 9:00am to 5:00pm on Mother’s Day in each year.
That in the event the child suffers a serious illness or injury then the party with whom that child is living at the time immediately notify the other party and provide details of the treating doctor or like professional.
That in the event that the said child is hospitalised the party with whom the child is living at the time immediately notify the other party and that other party is at liberty to visit the said child daily during such hospitalisation period.
That SAVE AND EXCEPT when the said child returns to live in Adelaide pursuant to paragraph (2) above the mother be restrained and an injunction is hereby granted restraining her from changing the said child’s principal place of residence prior without the written consent of the father.
That pursuant to Section 62B and Section 65DA of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.
That all applications be dismissed and removed from the active pending cases list.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Crestwell and Judd.
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 1760 of 2003
| Mr Crestwell |
Applicant
And
| Ms Judd |
Respondent
REASONS FOR JUDGMENT
Introduction
I have before me for determination competing applications for parenting orders in relation to the child A born … July 1996.
In his Amended Application for Final Orders filed 1 September 2006, the father sought the following orders:
2.1That the mother be ordered to return the residence of the child of the relationship namely A born … July 1996 to Adelaide in the State of South Australia.
2.2That the said child do live with the father.
2.3That in the alternative that the said child do live with the father and mother on a week about basis.
2.4That the father and mother do have the shared parental responsibility for the said child.
2.5That an injunction be granted restraining each party from removing the principal place of residence of the said child from the metropolitan area of Adelaide.
At the time of the trial, the father set out the following “proposal” in his case summary document:
“1. That the applicant father spend time with the child [A] on an unsupervised basis on Saturdays and Sundays between the hours of 9.00am and 5.00pm each alternate weekend at [B] commencing 11th November 2006, thereafter the weekend commencing Saturday 25th November and thereafter commencing Saturday 9th December 2006;
2. The Victorian school term 4 finishes on Thursday 21st December 2006. The South Australian 2007 term 1 commences Monday 21st January 2007. The [P] Primary School, where there is continued to be a place held for the child [A] commences some days later than that;
3. That the mother and child relocate to Adelaide to reside permanently on or before 23rd January 2007;
4. That the father do spend unsupervised time with the child [A] during the Christmas school holidays 2006/2007 as follows:
a.From 9.00am Saturday 23rd December 2006 until 2.00pm 25th December 2006 (also comprising one half of Christmas Day);
b.From 9.00am Friday 5th January 2007 until 6.00pm Monday 8th January 2007;
c.From 9.00am Friday 19th January 2007 until 9.00am Tuesday 23rd January 2007.
5. That the mother thereafter have the child live with her from 9.00am Tuesday 23rd January 2007, get the child ready for school and set her up into her new home and that the father do spend time with the child [A] during term 1 of 2007 as follows:
a.From the conclusion of school Friday 2nd February 2007 until the commencement of school Monday 5th February 2007 and each alternate weekend thereafter upon the same basis;
b.This will mean that the father will spend time with the child [A] in the weekends of Friday 2nd February, Friday 16th February, Friday 2nd March, Friday 16th March, Friday 20th March.
6. The term 1 2007 school holidays commence as of Friday 13th April 2007. It is proposed that the father spend time with the child [A] from the conclusion of school Friday 13th April 2007 until 6.00pm on Saturday 21st April 2007.
7. It is proposed that the mother do spend time with the child [A] from 6.00pm Saturday 21st April 2007 for the balance of the school holidays.
8. That from the commencement of term 2 2007 that the father and mother do have shared parental responsibility for the child [A] and that the child live with both parties on a week about basis.
9. It is proposed that thereafter the said child [A] do live with the father from the conclusion of school on Friday 4th May 2007 until the commencement of school on Friday 11th May 2007 and each alternate week thereafter during the same period.
10. Thereafter it is proposed that each of the said child [A] do live with each of the parties for one half of each school holiday period, with the mother for Mother’s Day, with the father for Father’s Day, that the child’s birthday and Christmas Day be shared equally between the parties.”
On 16 August 2006 the mother filed an Amended Response seeking the following orders:
4.1That the child A born on … July 1996 do live with the mother who shall be solely responsible for the said child’s day to day care, welfare and development.
4.2That the mother be at liberty to live with the child A in B in the State of Victoria.
4.3Such further or other Orders as this Honourable Court deems fit.
At the commencement of trial the mother sought the following “orders” in her case outline:
“That the Court finds that in January 1996 the father sexually abused the child [P] by touching her on the vagina.
1. That the mother seeks a finding that the child [A] is at risk of sexual abuse or harm.
2. That on that basis the presumption that shared parental responsibility would be in the best interests of [A] is rebutted.
3. It is in the child’s best interests that she live with her mother and that she be permitted to reside in [B] in the State of Victoria.
4. That there be no order for the child to spend time with the father of communicate with him and that the child be permitted to attend counselling pursuant to the recommendations of the Family Assessment Report.”
However, during the course of the trial the mother changed her position and sought the following orders:
6.1If there is a finding of unacceptable risk then the child should continue to spend supervised time with the father at the nearest Children’s Contact Service to B, namely at either W or S.
6.2If there is an order that the child is to return to Adelaide then the supervised time be at the L Contact Service.
6.3If there is no finding of unacceptable risk then the child should not be required to return to Adelaide and the child can spend time with the father in B.
6.4If the child is required to return to Adelaide then the child should only spend time with the father on alternate weekends and for one half of each school holiday period.
Factual Background
The father was born on … October 1941 in the Netherlands and is now aged 65 years. He came to Australia in 1953, aged 11 years.
The mother was born on … August 1956 in the United States of America and is now aged 50 years.
The father was formerly married and has three adult sons from that marriage. He also has an adult daughter from a previous relationship.
The father admits he previously had a problem with alcohol, and he is a long-standing member of Alcoholics Anonymous, but he says he has not consumed alcohol since 1976.
In 1977 the mother married Mr W.
On … September 1984 the mother’s daughter P was born in California. Thus, P is now aged 22 years.
In 1991 the mother, Mr W and P moved to Singapore.
In 1993 the parties met through the mother’s former husband. The father claims both Mr W and the mother had drinking problems at this time which he helped them overcome.
The mother’s marriage to Mr W ended in 1994.
The mother came to Australia to look for employment, but returned to the United States when she was unsuccessful.
The parties commenced cohabitation in October 1995 when the mother and her daughter P moved from the United States to live with the father in M.
On … July 1996 the parties’ child A was born and is now aged 10 years.
In 1996 the parties moved from M to F.
It was alleged that between the 28 September 1996 and 27 September 1997 the father sexually assaulted the mother’s daughter P. However, nothing was done about this at the time.
The mother became a permanent resident of Australia in February 1998.
In September 1998 the parties separated. The mother moved to a home in close proximity to the father and the parties shared the care of A.
On 12 December 1999 the alleged incident of sexual abuse of P by the father was reported to police. According to the Police Incident Report generated, P disclosed to a school counsellor that the father had placed his fingers into her vagina when she was 12 years old, being between 28 September 1996 and 27 September 1997. However, no further action was taken at that time.
In 2002 the child A commenced her schooling a P Primary School.
In February 2003 the mother met Mr G over the internet. Mr G lived in B, Victoria. The mother met Mr G in person in Victoria in May 2003 and they became engaged in June 2003.
In or about July 2003 the mother informed the father that she was proposing to move to Victoria to live with Mr G.
The father filed a Form 3 Application for Final Orders on 8 July 2003 seeking orders that the child reside with him and the mother have contact with the child each weekend, for half of the school holiday periods and on special occasions as agreed. The father also sought that the mother be restrained from removing the child from the State of South Australia without his written consent.
The mother filed a response on 24 July 2003 seeking orders that the child reside with her and that the father have contact during the week, every weekend and on special occasions as agreed.
On 8 August 2003 Registrar Kelly made orders that during the period of the adjournment the child live with the mother from 10.00 am Sunday to 5.00 pm Wednesday of each week and live with the father at all other times. The parties were also to have equal time during the school holiday period. The parties were ordered to attend a conference with a family and child counsellor or welfare officer.
The child exhibited distress at the prospect of moving to B and leaving the father, and as a result of this and her aggressive behaviour at school she was seen by a psychologist.
In October 2003 P requested the release of her records in relation to the report of sexual assault made in 1999. She then sought that the police pursue this with the father.
During the October 2003 school holidays the mother and A stayed with Mr G in B without informing the father.
On 18 November 2003 Registrar Paxton made orders by consent that the orders of 8 August 2003 continue. Orders were also made restraining the mother from:
33.1Removing the child from the Adelaide metropolitan area.
33.2Giving the child or allowing a third party to give the child alcohol.
33.3Consuming alcohol to excess while the child was in her care.
33.4Allowing the child to be alone and unsupervised in the presence of the mother’s fiancé without written consent of the father.
Both parties were able to telephone the child once a week and were to utilise a communication book. Both parties were also to ensure the child attended school. A Family Assessment Report was ordered.
The father filed an Amended Form 3 Application on 27 November 2003.
On 2 December 2003 the mother’s solicitor wrote to the father’s solicitor seeking an undertaking that the father provide the child with separate sleeping accommodation and that he not share a bed with the child.
The mother states in her affidavit filed 19 February 2004 that she was concerned about the father’s relationship with the child. These concerns were primarily based on her belief that the father was sleeping in the same bed as the child, the father giving the child red roses and a card for Valentine’s Day on 14 February 2004, the father taking a picture of the child in her underwear, and the previous allegations made by P.
On 17 February 2004 the mother reported her concerns to the Child Abuse Hotline. She was advised that an investigation would be undertaken.
On 19 February 2004 the mother filed a Form 8 Application in which she sought orders that the child live with her until investigations had been completed by the Department of Family & Youth Services.
The mother filed a Notice of child abuse or risk of child abuse on 20 February 2004.
On 24 February 2004 Senior Registrar Kelly suspended the father’s periods of residence until 7 March 2004. It was ordered that each party liaise with the Department of Family and Youth Services to enable their investigations to be concluded as soon as possible.
On 28 February 2004 the child A was interviewed by police about her relationship with her father.
On 5 March 2004 Registrar Kelly ordered the father’s periods of residence be suspended during the period of the adjournment. Orders were also made that the child was to be separately represented and pursuant to Section 91B of the Family Law Act, the Court requested the intervention of the Minister for Family and Community Services.
On 11 May 2004 the child A was further interviewed by the police.
On 12 May 2004 the father’s periods of residence was once again suspended during the period of the adjournment.
On 11 June 2004 Registrar Kelly made orders suspending the father’s residence pursuant to the orders of 8 August 2003 and 18 November 2003 until further order.
In June 2004 the father was charged with indecently assaulting the child A between 1 July 1996 and 28 February 2004 at F. The father was also subsequently charged with having unlawful sexual intercourse with a person under the age of twelve years, namely P, between 1996 and 1997.
In July 2004 the mother sold her home in Adelaide.
On 12 July 2004 the mother filed a Form 2 Application seeking orders that she be permitted to relocate with the child to B, Victoria.
In September 2004 the mother relocated to B, Victoria with the child in breach of the injunction made on 18 November 2003.
On 7 March 2005 the charge of indecently assaulting A was withdrawn.
On 31 March 2005 the father filed a Form 18 Application alleging Contravention in relation to the mother removing the child from South Australia in breach of the injunction.
On 6 July 2005 Judicial Registrar Forbes found that the mother contravened the order of 18 November 2003 in changing the principal place of residence of the child from the Adelaide metropolitan area to B, Victoria in September 2004, and that she did so without reasonable excuse.
On 28 July 2005, following a jury trial in the District Court, the father was acquitted of the charge of unlawful sexual intercourse with P.
On 3 August 2005 the father filed a Form 2 Application in a Case seeking orders that the order of 11 June 2004, suspending orders with respect to joint residence made 8 August 2003, be discharged. The father sought that the orders of 8 August 2003 be reinstated. The mother opposed the application.
On 8 August 2005 Judicial Registrar Forbes ordered that a welfare officer be appointed by the Manger of the Court Mediation Section to conduct a family assessment and provide a report with respect to issues of residence and contact.
In September 2005 the mother separated from her fiancé Mr G but she remained living in B with A.
Ms U, Family Court Mediator, prepared a Family Assessment report on 29 September 2005. Ms U made the following recommendations:
“42.It is respectfully recommended that this matter proceed to trial for a judicial decision to determine whether or not [A] has been or is in danger of being sexually abused.
43.If a decision is made for contact between [the father] and [A] it is recommended that [the father] attend counselling to learn appropriate ways to relate to [A] and that [A] receive counselling to help her recognize abusive behaviour.”
On 17 October 2005 Judicial Registrar Forbes made orders with respect to the penalty for the mother’s contravention. The mother, being found to be in serious disregard of the orders of the Court, was ordered to enter a bond of surety in the sum of $1,000.00 for the period of 12 months, the condition of which being that the mother do comply with all orders of the Court as to contact. It was also ordered that the mother give and the father have contact with the child on one occasion each month, such contact to be supervised at H Children’s Contact Centre or such other Contact Service as the parties agree or the Court may order.
Also on 17 October 2005, Dawe J made the following order:
“…
3. That the mother do file and serve an Affidavit of her evidence in chief and Affidavits of evidence in chief of any of her witnesses by 16 December 2005 PROVIDED THAT the mother may rely upon the transcript of the District Court evidence of her daughter [P] and the expert evidence given in the District Court if that is agreed by the other parties.”
Pursuant to the orders of Judicial Registrar Forbes made 17 October 2005, the father has had supervised contact with the child at Children’s Contact Service centre for two hours once a month since December 2005.
On 16 August 2006 the mother filed a Form 1A Amended Response to the Application for Final Orders.
The father filed a Form 1 Amended Application for Final Orders on 1 September 2006.
The current circumstances of the parties
The fatherThe father lives alone in a rented house at J. That home is the home where the child A lived with the father when she was with him prior to the suspension of the order for shared care. It comprises three bedrooms, a dining room, kitchen and lounge room and provides suitable accommodation and facilities for the child. The father still has A two dogs with him and he still has the horses that she used to ride.
The father is a self-employed tradesman but prior to trial he had not been working very much as a result of a heart attack suffered in late 2005. He proposes to resume work on three days each week and he expects to earn $600.00 to $700.00 per week. Currently he receives the old age pension of $250.00 per week.
The father has continued to have monthly supervised contact of 2 hours with the child A at the Children’s Contact Service. This commenced in December 2005 after a 19 month period of no contact.
The father is a long time member of Alcoholic’s Anonymous. He assists younger members, although he is not a counsellor. He last drank alcohol 31 years ago.
The father pays child support but there have been difficulties with that in the past and there are arrears of approximately $1,900.00. The father sold his home and sold his motor vehicle to meet legal fees and he now has almost nothing by way of assets.
The father has kept A on a waiting list for enrolment at the P Primary School which was the school she attended prior to being taken to Victoria in 2004. The father has also maintained an involvement with that school. He helps with maintenance and repairs.
The father has a lady friend with whom he has been in a relationship for 9 to 10 months. She is 56 years of age and has children of her own. They do not live together and that has not yet been discussed.
The father has three sons from his previous marriage. He has contact with one of the sons who lives in Queensland and who has two children. However, through his former wife he does see two of his three other grandchildren.
The father also has a 31 year old daughter from another relationship who lives in Sydney and is in the Defence Forces. She also has a daughter of her own.
The mother
The mother lives with the child A in a three bedroom home in B Victoria.
B is a small country town north of Melbourne. It has a population of 9,000.
The mother works as a health professional at the local Hospital for approximately 23 to 24 hours per week on average. She is employed on a permanent part-time basis and she works shift work but not night shifts. She is also on call two to three times per week and on one weekend per month.
The mother no longer utilises any care facilities and she leaves the child to look after herself when she is at work. Two to three times per week the child makes her own way to and from school and in the afternoon lets herself into the home and waits for her mother to return after finishing work.
The mother’s income from this employment is $29,000.00 gross per annum. She also receives Centrelink benefits and her total weekly income varies between $165.00 and $350.00 depending on her hours of employment.
The mother has $5,000.00 in savings, but she has a claim for $50,000.00 to be repaid by her former partner Mr G and his mother.
The child A attends the B Primary School and she is in Year 5. That school is 1.5 kilometres from the mother’s home.
Prior to the trial the child’s school referred A to be psychologically assessed as a result of behavioural and social difficulties, and to see a speech pathologist. There was a suggestion that she might be suffering from Asperger’s Syndrome.
A was seen by Ms B, Psychologist, and she provided a report on 27 October 2006. This was received on 1 November 2006 and was tendered and marked Exhibit C4.
The summary from her report is as follows:
“SUMMARY and DISCUSSION
[A] was assessed with the W I S C – IV on 25/10/2006 and test results are considered an accurate measure of her cognitive functioning at that time.
[A’s] results were in the average to above average range.
Because of the behavioural concerns of both school and parent, the Asperger’s Disorder Checklist [devised by [Ms H], Psychologist] was completed.
In the social skills area it was revealed that [A] has very few friends, seems to find it difficult to read social situations, makes inappropriate comments or does socially inappropriate things, often chooses solitary activities, tries to make friends but this is usually unsuccessful and tries to impose her own interests on others.
[A] tends to be somewhat inflexible, becoming unsettled if something unexpected happens and her mother needs to prepare her for changes. [A] has complicated routines which she has to follow, which makes for organization difficulties, particularly in the morning preparation for school. Her mother has very sensibly adopted visual checklists, which has helped in this area.
In the domain of emotional understanding, [A] has difficulty in understanding how other people are feeling, she seems flat and expressionless, when the situation should evoke strong emotion, but tends to get very emotional over small issues. [A] also can show some degree of anxiety.
[A] is also quite ego centric, she tends to only see things from her own point of view, but expects other to be able to read her mind.
In the area of non verbal communication, [A’s] eye contact is unusual, she tends to be “wooden” when cuddled and does not always understand facial expressions or gestures of others.
Her interests are somewhat restricted also, she can show an intense and prolonged interest in a topic and tends to find facts and figures engrossing.
Though [A] speaks quite well, the quality of her language is unusual. She is pedantic [her verbal responses during testing were delivered in this way] she often talks on and on at people and can be quite repetitive.
[A] appears to experience some sensory issues, her handwriting is somewhat poor and she hates to have anyone brush her hair.
Despite her social difficulties, [A] presented as a child who is content in her environment and who has an understanding of the difficulties inherent in a situation where parents are separated.
Given the indications from the Asperger’s Checklist, it would be advisable for some additional investigation, such as an adaptive behaviour assessment and a pragmatic language assessment by a speech pathologist to be undertaken. The information obtained could be most useful for devising appropriate interventions for [A].”
Ms B was not called as a witness, and there is no evidence before me as to the result of any further investigations. However, by agreement with all counsel the mother’s counsel informed me of the following from a telephone conversation with Ms B during the course of the trial:
“If I could just tell your Honour briefly that [Ms B] said that whilst [A] may have had a speech pathology test already, she will require a further speech pathology test as a pragmatic assessment of how she uses language socially, which is not what she considers the earlier speech pathology test would have revolved around. It would be her view that she would do the adaptive behaviour testing that she recommends in the report and that she would refer [A] to a paediatrician. There are paediatricians in [W] who visit [B].
The protocol if [A] is diagnosed as suffering from Asperger’s is that she would be referred to the [Regional] Child and Adolescent Mental Health Team (in [W])…they would coordinate the approach to be taken with [A], including the way she should be taught, how her behaviour should be managed, et cetera…”
The mother’s adult daughter from her previous marriage, P, lives in Adelaide and attends University.
The issues in dispute
The primary issue is whether the child A should spend time with the father on a supervised or unsupervised basis. This is dependant on whether there is an unacceptable risk of the father sexually abusing the child or at the very least behaving inappropriately towards the child if there was unsupervised time. If there is no finding of an unacceptable risk, and no supervision is required, there is then the issue of whether the child should live primarily with the mother or equally with the parents. Finally, regardless of unacceptable risk, a further issue is whether the child should live in B or in Adelaide.
The mother’s case changed several times during the course of the trial. She ultimately conceded that it was not open to the court to make a finding that the child A has been sexually abused by the father, but she did seek a finding that there is an unacceptable risk of the father sexually abusing the child A if he has unsupervised time as a result of her claim that the father has sexually abused her other daughter, P. She then conceded though that it is difficult for this court to find that the father sexually abused P, and her position then became that it is open to this court to find that the father has behaved inappropriately (including sexually inappropriately) towards P, and from that an inference can be drawn that there is an unacceptable risk that he will behave in a similar way towards A. Indeed, the mother says that there is some evidence that already he has behaved inappropriately towards A, and this further allows that inference to be drawn. The mother here is referring to the allegations of the father bathing and showering with A, of A sleeping in the same bed as the father, of the father taking a photograph of A in her underwear, and to what A said and demonstrated during her interviews by the police as to the father “tickling her fanny”.
The father denies that he has sexually abused either child and/or that he has behaved inappropriately towards either child.
The father in effect seeks a return to the shared care arrangement that was put in place by the parties themselves and then made the subject of a consent order on 8 August 2003. However, the father now seeks that it be week and week about. The father also seeks that the child returns to Adelaide from B where the mother took the child in breach of an injunction in about September 2004. The mother seeks that the child be able to remain living with her in B. However, if the child has to return then she will do so as well.
The parties are also at odds over who should have parental responsibility for A. The father seeks that there be equal shared parental responsibility, but the mother seeks that she have that responsibility solely. The mother’s allegations of child sexual abuse and of inappropriate behaviour by the father provides the basis for the mother’s position in this regard. In other words, she says that the presumption in Section 61DA of the Family Law Act does not apply for these reasons.
During the course of the trial each party made a number of other allegations against the other. For example, the mother’s counsel spent a good deal of time cross examining the father about his gambling habits. However, I consider that that is irrelevant to the issues that I have to decide. There is no doubt that the father gambled, that that caused financial difficulties in the household, and that in turn led to arguments, but that has no bearing on where the best interests of the child A lie.
For the father’s part he alleged that the mother was consuming alcohol and was exposing A to a number of different men friends. However, he had no reliable evidence to support these allegations and I reject them.
The applicable legislation
In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act. The objects of those provisions of the Family Law Act relating to children are:
(a)to ensure 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 children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the 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; 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. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of Section 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(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. (Section 60CC(2))
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))
The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the court. (Section 61C)
Under the provisions of Section 61DA(1) when making a parenting order the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))
If the court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))
The proposals of the parties
The fatherThe father seeks that the child return to Adelaide as soon as practicable, and that after two to three months of increasing the time that the child spends with him the child spend equal time with the parties, namely on a week and week about basis.
The father will remain living in his current rented accommodation, and the child would resume attending the P Primary School. However, given the mother’s opposition to that the father has indicated that he would look at the child attending a different school.
If the father does resume his employment, although his working hours would be flexible and he will not be working every day, he will still need to place A in before school and after school care at times. He will also need to rely on vacation care for part of the school holidays when A is living with him. He would propose to only take his holidays during the Christmas school holiday period.
The mother
The mother seeks to remain living in B in her current accommodation with the child, and in that regard she proposes that the child spend supervised time with the father at a Children’s Contact Service at W or S on a regular basis. There is no Children’s Contact Service at B, but W is only 30 minutes away and S is only one hour away.
On this scenario the child would also continue to attend the B Primary School.
If the child is required to return to Adelaide then the mother will return as well, but she asks that that not be for a year. She will find suitable accommodation and look to enrol the child in a school nearby. She is opposed to the child attending the P Primary School, although it is not entirely clear on the evidence why that is. It seems to have something to do with the fact that it is a Seventh Day Adventist school.
In relation to the child spending time with the father the mother proposes that she continue to see him on a regular basis at the Children’s Contact Service, but supervised of course.
In B the mother would continue her current employment. If she had to return to Adelaide though she says that she would have difficulty finding similar work. She would need to work longer hours and be on call more, and that would entail leaving A in child care.
The mother asserts that the advantages of living in B are as follows:
109.1It is a small community and everything is easily accessible.
109.2She lives close to A’s school and to her place of employment.
109.3The hospital where she works is highly regarded and although she is on call at times she is seldom asked to attend outside the hours she works anyway. This occurs once per month on average.
The mother says that there are adequate facilities in B. There are shopping centres, department stores, libraries, swimming pools and sporting facilities. There is vacation care available, and there are two secondary schools.
Although her relationship with Mr G has ceased and she does not need to stay in B to pursue that relationship, the mother says she has no reason to return to Adelaide. Her other daughter P still lives here, but she is able to have sufficient contact with her from B.
The mother has no other relatives anywhere in Australia.
The mother has also raised the possibility of the father moving to B rather than her and the child returning to Adelaide. She says the father has “no ties” in Adelaide and that he could obtain rental accommodation and look for work in B and the surrounding district. This only arose in final addresses though, and the father was not cross examined about this or given any opportunity whatsoever to comment.
Finally, I should mention that if there is a finding of no unacceptable risk and she is required to return to Adelaide with the child, then the mother proposes that the child spend time with the father on alternate weekends and for half school holidays, but after a lead in time of two to three months after their return.
The evidence
The father was represented by Mrs Read. He gave evidence and was cross examined. He relied on his affidavits filed on 19 November 2004 and 15 December 2005.
The mother was represented by Mrs West. She gave evidence and was cross examined. She relied on her affidavits filed on 12 July 2004 (but not including the annexures) and 15 December 2005.
The transcript of the trial in the District Court when the father was acquitted of the charges involving P was tendered and relied on by the father and the mother. That transcript was annexed to the affidavit of Mrs Read filed on 14 November 2005. Apart from the father and the mother none of the witnesses who gave evidence at the trial were called as witnesses in this case.
The transcript together with the video tape of the interview of A by Senior Constable R on 28 February 2004 was tendered and relied on by the father and the mother. That transcript was annexed to the affidavit of Mrs Read filed on 10 October 2005. In addition, the video of the interview of the child by Senior Constable R on 12 May 2004 was tendered, but without a transcript. That was also relied upon by both the father and the mother.
The Independent Children’s Lawyer was represented by Mr Noble. Mr Noble tendered two reports from the Children’s Contact Service and the authors of those reports were not required for cross examination.
Pursuant to an order of the court Ms U, Psychologist, prepared a Family Report dated 29 September 2005. She gave evidence and was cross examined.
The father gave his evidence reasonably well. He was confident and forthright although at times he became hesitant and somewhat confused when being cross examined about the details of some past event. Putting aside for the moment the issue of child sexual abuse there was only one aspect of his evidence where I considered that he was not being truthful, and that was in relation to the extent and outcome of his gambling. He clearly has been a heavy gambler, and although he denied gambling after 2003 I find that this was not the truth. For example, I consider that certain withdrawals he made in 2005 from an ATM at the G Hotel were used for gambling purposes. However, the question of the father’s gambling habits has no relevance to the decision this court has to make outside of the issue of credit. In other words, the mother’s case is that if the father has not told the truth about this issue, this court should not believe him on relevant issues such as the allegations of child sexual abuse. I will take this into account when I deal with those allegations.
I cannot leave this topic of the father’s evidence without commenting on the presentation of his case. Unfortunately, the affidavits on which he relied were hard to read, out of sequence, repetitive, and contained significant inadmissible and irrelevant material. I then had great difficulty with the submissions of the father’s counsel during the trial. For example, the final address was of minimal assistance to me and the father’s counsel failed to address the relevant principles or even the Family Law Act itself. However, these failings should not be allowed to prejudice the father in this case.
The mother also gave her evidence reasonably well. Again, putting aside the allegations of child sexual abuse which I will address later in these reasons there is only one aspect of her evidence where I considered that she was not telling me the truth. Her evidence generally was that the child was progressing well at school in Victoria and that she was not having any behavioural problems at home or at school. However, this was quite different to what the mother told the psychologist who was brought in by the school to assess her “behavioural/social difficulties”. In her report (Exhibit C4) the psychologist said that, “both the school and the parent have had ongoing concerns about [A’s] unusual behaviour”, and that this was not a recent phenomenon. The mother was clearly having difficulty in managing A and her behaviour, and it is concerning that she attempted to paint an entirely different picture to this court.
Ms U was a Family Court Mediator with qualifications in psychology. However, in general I was not impressed with her report or her oral evidence. She was able to make some assessment of the parties and the child, but despite quite properly taking the stance that it was for the court to decide on the allegations of child sexual abuse, it is apparent that she was on the “lookout” for anything said or done by the father which would tend to give cause for concern. For example, she made the following comments in her evaluation:
“35.While police charges have been withdrawn, it cannot necessarily be assumed that abuse has not taken place. In this context some of the observations made during this assessment give cause for concern.
36.There is no doubt that [the father] and [A] have a close relationship. The behaviours witnessed during the observations and [the father’s] acknowledgement in his Affidavit of massaging his daughter as normal family behaviour; could be consistent with what is referred to in the literature as blurred boundaries. Blurred boundaries are often associated with sexual abuse.
…
38.These behaviours can be quite innocent, however in the light of the alleged sexual abuse they can also be an indication of what the literature refers to as “grooming”.”
In my view, in making these comments Ms U has chosen to place the worst possible interpretation on her observations of the father and the child, and she has taken what the mother has said to her at face value. Another example of this arose in her cross examination by the mother’s counsel. She was shown the photograph of A in her underwear without being given any information about the context or the circumstances in which the photograph was taken. Ms U then boldly declared that taking such a photograph was inappropriate. However, when I then explored the context with her she backtracked.
Unfortunately, Ms U did not approach this matter as she should, namely, as an independent, unbiased expert witness.
Having heard the evidence I can say that I do not share the concerns that Ms U expressed in her report about the relationship between the father and A. I reject entirely the recommendations contained in paragraph 43 of her report and which I have set out in paragraph 57 above.
That said, there are some aspects of Ms U’s report and her oral evidence which I do accept and which says a good deal about the nature of the relationship between the child and her father. I will expand on this later in these reasons, but for now one example of this is in her oral evidence where she said that she had “an independent vivid memory of when the child and the father were first brought together”. She said she had this memory because of “how much the child displayed her love for her father”.
The transcript of the jury trial in the District Court of South Australia in July 2005 before Judge Barrett and which resulted in the father being acquitted of unlawful sexual intercourse with a person under 12, namely P, was tendered in these proceedings and relied on by the father and the mother.
The witnesses for the prosecution were P, the mother, and Dr N. The father gave evidence for the defence as well as Dr C and two character witnesses.
The evidence of all of these witnesses was put before me as part of the transcript of that criminal trial. However, to repeat, in this trial, of those witnesses mentioned, only the mother and the father gave evidence, although each were cross examined about parts of the evidence they gave at the criminal trial.
Significantly in my view, P did not give evidence before me, and although she had filed an affidavit on behalf of the mother that affidavit was not relied on by the mother at the trial. Thus I was left with the evidence of P given at the criminal trial and cross examination of the parties about the allegations made by her.
Because both parties and the Independent Children’s Lawyer consented to the tendering of that transcript, no question of admissibility arose, and it is only a question of use I make of the same. However, that is not a simple question. Section 69ZX of the Family Law Act does not apply because this is not a case to which Division 12A of the Family Law Act applies. Thus, at the commencement of the trial I raised with all counsel what use I was to make of the transcript, and it readily became apparent that they had not thought too much about this. After much to-ing and fro-ing I do not know that I ever received a satisfactory answer to that question. What the mother’s counsel did put to me though was that I should consider all the evidence given at the trial, particularly taking into account “the admissions” made by the father in his evidence, and then consider the cross examination of the father in this trial as to the allegations made by P, and apply the lesser civil standard of proof and find that the father did sexually abuse P. At least that was the initial position of the mother, but to repeat, in her final address the mother’s counsel conceded that it would be “difficult” for this court to find that P was sexually abused by the father and instead put to me that I should find that the “behaviour” of the father towards P was “inappropriate” and “if not deliberate then reckless”.
From there the mother’s counsel asked me to at the very least draw the inference that there is an “unacceptable risk” that the father will behave in a similar way with A. In fact, to repeat, the mother says that that behaviour has now commenced.
The transcript of the interview of the child A by Senior Constable R on 28 February 2004 was put before me without objection by the father’s counsel, and the video tape of this interview as well as the video tape of the interview of the child by the same police officer on 12 May 2004 were tendered by the mother’s counsel (Exhibit W5). The police officer was not called as a witness or required for cross examination by either party or the Independent Children’s Lawyer.
Section 60CC of the Family Law Act
I now turn to the factors that I must take into account in determining what is in the best interests of the child A.
The primary considerations
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents;
There is no doubt that in this case the child would benefit from having a meaningful relationship with both of her parents. Currently the child has a meaningful relationship with the mother, but as a result of the child still residing in B and only spending two hours each month with the father at the Children’s Contact Service under supervision it could not be said that she is having a normal relationship with the father. Whether it is meaningful or not is perhaps a question of degree. As I will elaborate on in a moment, the child still enjoys a close and loving relationship with the father, but she is certainly not enjoying the benefits of spending time with her father on a frequent and regular basis and having him involved in all aspects of her life without any restrictions.
The phrase “meaningful relationship” is not defined in the Act, but some guidance is provided by the objects in Section 60B. One object is to ensure that the best interests of the children are met by:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;” (Section 60B(1)(a))
Then there are the principles underlying the objects and one such principle is that except where it is or would be contrary to a child’s best interests,
“(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);” (Section 60B(2)(b))
It has been said that the objects and principles in Section 60B guide the interpretation of Section 60CC and for that matter Section 60CA. Now that may be the case, but the bests interests of the child are still the paramount consideration and that is quite apparent from the wording for example of Section 60B(1)(a) and Section 60B(2)(b).
Section 60CC(1)(a) clearly operates at the level of general principle, and is a reminder to the court of the importance of the benefits to a child of having a meaningful relationship with each parent. It requires the court to take those benefits into account but leaves the additional considerations in Section 60CC to determine whether those benefits can be achieved in each individual case consistent with the best interests of the child involved.
(b) the need to protect the child from physical or psychological harm and from being subjected to, or exposed to abuse, neglect or family violence;
This is of course a primary issue in this case. The mother initially alleged that the father had sexually abused A, but then conceded that such a finding was not open on the evidence before the court and eventually retreated to seeking a finding that there was an unacceptable risk of the father behaving inappropriately, including sexually, towards A if she spends unsupervised time with him. The father denies these allegations and seeks that there be a resumption of an arrangement which would ultimately see the child spending equal time with the parties.
The allegations of sexual abuse / inappropriate behaviour
Following a discussion that the mother had with A after she returned from residing with the father on 16 February 2004 the mother made a notification to the Department of Family and Youth Services on 17 February 2004, filed an application in this court on 19 February 2004 and filed a Notice of Abuse. The concerns of the mother at this point were as follows:
143.1That the child was sleeping in the same bed as the father and the father had told the child not to tell anyone about this.
143.2The father had given the child a Valentine’s Day card and red roses.
143.3The child was cheating with her homework and the father was letting her do that and saying “not to tell anybody”.
143.4The child was uncomfortable about the secrets that her father had asked her to keep.
143.5The father had taken a photograph of the child in her underwear and she was embarrassed about that.
143.6The mother believed that the father had sexually assaulted her other daughter P and had behaved inappropriately towards her subsequently.
At some later time the mother also became concerned about the father bathing and showering with the child and the child behaving in a “flirtatious and seductive” manner around male teenagers and adults.
There was no evidence before me as to what the Department did about the notification made by the mother, but the child was interviewed by the police on 28 February 2004. At this interview the child spoke of the father tickling her on her “fanny” but made no other disclosure.
The child was then interviewed again on 11 May 2004 by the same police officer. The child again spoke of being tickled on her “fanny” by her father, but there was still no other disclosure.
The father was subsequently charged with indecent assault on A but there is no evidence before me of the precise charge or the particulars of the same. In any event, on 7 March 2005 this charge was withdrawn.
In considering the allegations I must be mindful of the standard of proof required. The standard is set out in Section 140 of the Evidence Act as follows:
“(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject‑matter of the proceeding; and
(c)the gravity of the matters alleged.”
Section 140(2) is a codification of the oft-quoted remarks of Dixon J in the High Court decision of BRIGINSHAW v BRIGINSHAW (1938) 60 CLR 336. His Honour said this at p.362:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which much effect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, in definite testimony, or indirect process.”
In this case the requisite standard of proof has not been achieved, and I am not satisfied that the father has either sexually abused A or behaved inappropriately towards her. My reasons for this are as follows:
150.1It must be appreciated that the allegations arose in the context of the child P alleging that the father had sexually abused her in 1996 and behaved inappropriately towards her by undoing her bra strap and fondling her breasts, and watching her naked on occasions thereafter. It is quite clear that the situation with P caused the mother to be hyper-sensitive about A, to question A inappropriately and to always think the worst of interactions between the father and A, although as I will elaborate on in a moment it is significant that these “concerns” were only raised when the mother was wanting to move interstate. This accounts for her concern about the child sleeping in the same bed as the father, about the Valentines Day card and the roses, about the child’s behaviour at school and her cheating with her homework, about secrets A had with her father, about the photograph, about A bathing and showering with the father and about her conduct around other males.
150.2The innocence of most of these interactions was established in the interview of the child by the police on 28 February 2004. The child spoke well, she displayed confidence, and she appeared comfortable at all times. She was adamant that nothing untoward occurred when she and her father were “in” the same bed, or when they bathed or showered. This, coupled with the father’s evidence about these topics, the truth of which I accept, gives me no concern at all about such interactions. Indeed, I am satisfied that what the child said to her mother about these things was not always accurate, and sometimes arose directly from the mother questioning her inappropriately. For example, I refer to the mother’s questioning of the child about sleeping “with the father” as set out in paragraphs 8 to 11 inclusive of the mother’s own affidavit filed on 19 February 2004.
150.3With the Valentines Day card and the roses, I also accept entirely the father’s evidence about that and I find that it was nothing more than the father responding to A wanting to be involved in Valentine’s Day.
150.4With the child’s behaviour at school there could be a number of reasons for that, including Asperger’s Syndrome or emotional upheaval, and it does not indicate the father was behaving inappropriately towards the child.
150.5I reject entirely the allegations of the father allowing the child to cheat with her homework, and there is simply no detail provided by the mother to allow me to make anything of the child’s alleged behaviour around other males, and to relate that to the father.
150.6With the photograph the child did say to the police officer that she felt embarrassed, but again that is a long way short of providing proof that the father has sexually abused her or behaved inappropriately. The father’s evidence was that he took the photograph as one of number of photographs that he took on that day, being a day when A was attending a party. He thought that she looked particularly pretty and he certainly thought nothing of taking a photograph of her in her underwear. The child’s reaction of feeling embarrassed is a natural one, but it should not be blown out of all proportion as the mother is attempting to do.
150.7With the “disclosure” by A during the course of the police interview on 28 February 2004 that the father had tickled her on her fanny, I find that no reliance can be placed on the same. It arose as a result of inappropriate leading questions by the police officer, the police officer failed to lay any groundwork for her questions or provide any framework to then be able to put A’s responses into context, and she pressured the child. There is a significant ambiguity about what the child was referring to.
The unreliability of the child’s responses was in effect conceded by the mother’s counsel and was the reason for the mother also conceding that the required standard of proof was not satisfied in this case.
A referred to the father tickling her on the fanny again when interviewed on 11 May 2004, but this adds no weight to the previous “disclosure”.150.8It also must be remembered that the allegations made by the mother follow closely upon the father opposing the mother moving to B to live with her new partner Mr G. When the father found out about this from the child in June 2003 he took proceedings including seeking an injunction preventing the mother from removing A from the State of South Australia without his written consent. As a result, the mother appeared to change her mind about wanting to move and a consent order was made on 18 November 2003 restraining her from changing the child’s principal place of residence in the Adelaide metropolitan area. Then of course the allegations of sexual abuse were raised by the mother in February 2004, and once orders were in place suspending the residence periods between the child and her father the mother filed an application in this court seeking that she be at liberty to relocate with the child to B, and she even amended the orders that she sought on a formal basis to include such an order. I find that the mother was proceeding at all relevant times on the basis that if she could at least limit the time that the child was spending with the father then she would be able to move to B to live with her new partner. At the same time I find that she was aware that allegations of child sexual abuse could very well result in either the child spending no time with the father or at the very least severely restricting that time. Thus, the timing of these allegations is a significant issue and casts doubt over the mother’s case. She did not raise any concerns at all prior to the end of 2003.
150.9Initially the mother included as part of the basis for claiming that the father had sexually abused A, the allegations made by P against him. Now, to repeat, P did not give evidence before me, and to also repeat, on some basis which I am still struggling to understand the entire transcript of the District Court trial in July 2005 was tendered to me by consent. For the mother’s part I was asked to read that transcript, to take into account the cross examination of the father in these proceedings about the allegations made by P, and after applying the appropriate standard of proof make a finding that the father sexually abused P. Then, coupled with the allegations that the mother makes in relation to how the father has behaved towards A, I was to find that the father has sexually abused A. I challenged the mother’s counsel about the validity of this approach at the commencement of the trial, yet the mother determined to proceed on that basis. I assumed that the mother was relying on the tendency rule contained in Section 97 of the Evidence Act in order to pursue this, although her counsel made no specific reference to it, and it was left to the counsel for the Independent Children’s Lawyer to first raise it. As a result of that the wife’s counsel did in her opening briefly identify the tendency evidence that the mother was relying on. She said this:
“It is our position, your Honour, that [P] was abused by the father in that at the very least, she was touched in the vaginal area – purposely, not accidentally, and that the father in this matter knew that he what he had done was improper. He made no apologies for it and he continued to act inappropriately, as evidenced by the fact that he continued to scratch her back and to – at least on one occasion – undo her bra. As a result of this behaviour towards a girl the age of between 11 years and 15 years when this occurred, that the father has those tendencies, which would put [A] at risk, as a young girl growing up in the same household with the father.
In concert with [Ms U’s] observations, and she will be the expert to say that yes, if the behaviour has occurred towards one girl – be she the blood daughter or not – there is a propensity there, or a tendency for it to occur again with respect to another female child of a similar age. Yes, that would be what we would be presenting to your Honour.”
Importantly, I mention at this point that Ms U did not in fact give the evidence that Mrs West opened on here.
150.10The tendency rule contained in Section 97 of the Evidence Act is a rule primarily about the admissibility of tendency evidence, which of course is not the issue here, but nevertheless it can still be of assistance in how I use the evidence from the criminal trial. Section 97(1)(a) renders the tendency evidence inadmissible if by itself or having regard to other evidence adduced or to be adduced, the evidence would not have significant probative value. “Probative value” is defined in the dictionary as follows:
“Probative value of evidence means the extent to which the evidence could rationally effect the assessment of the probability of the existence of a fact in issue.”
However, there is no guidance as to the adjective “significant”. It has been held though to mean “important” or “of consequence”, recognising that it must depend on the nature of the fact in issue to which it is relevant (R v LOCKYER [1996] 89 A Crim R 457 at 459).
150.11In ODGERS, Uniform Evidence Law (7th Edition), at p373-374 the learned author sets out the sorts of factors to be taken into account in assessing the probative value of the evidence and the strength of the tendency evidence. As to the former, the factors will usually include,
“The cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act or think in a particular way, and the extent to which that tendency increases the likelihood that a fact in issue did, or did not, occur.”
As to the latter, the assessment will normally turn on such factors as:
“● the number of occasions of particular conduct relied upon;
●the time gap(s) between them;
●the degree of similarity between the conduct on the various occasions;
●the degree of similarity of the circumstances in which the conduct took place (particularly if it is possible to establish a pattern of behaviour, or even a modus operandi, in those circumstances);
●whether the tendency evidence is disputed;
●whether the evidence is adduced to explain or contradict tendency evidence adduced by another party.”
150.12The Full Court decision in WK v SR (1997) FLC 92-787, provides an example of the operation of the tendency rule in a case in this Court involving allegations of child sexual abuse. In April 1987 BR was born from a prior relationship of the mother. CK, the child of the parties was born in November 1989. The mother alleged that the father had sexually assaulted both children, which was the finding that the Trial Judge ultimately made. The evidence of BR’s half sister AR was that on a number of occasions the father had attempted to touch her breast or kiss her in return for money or marijuana. At the time that the father made these efforts, AR was a minor. At no time had the father actually kissed or touched AR in an inappropriate manner. The Full Court had to consider whether the Trial Judge had fallen into error in relying upon AR’s evidence to support the finding of abuse in relation to the two younger children.
150.13The Full Court allowed the appeal and held, inter alia, as follows:
· It was clear that AR’s evidence did not form part of a chain of events, or logical series of actions, which would constitute a part of the res gestae of the father’s alleged abuse of the two younger children. It related solely to the father’s conduct towards AR. The only basis on which this evidence could be found to be “significant” in respect of a finding of abuse towards the younger two children would be if it established in the mind of the court a belief that the father was of such a character, or had such a history of actions, that it was likely that he had abused the two younger children. The question of the probative value of such evidence most often arises when a court is determining its admissibility.
· When considering the admissibility of similar fact evidence in civil proceedings, the test to be applied is: is the evidence relevant to an issue at trial and, if so, does it have sufficient probative force in that it displays a “system”, “underlying unity”, “unusual feature” or such other similarity that establishes the objective probability of the actual event or fact at issue in the trial as having occurred in the manner as alleged by the party seeking to adduce the similar fact evidence.
· This test, relying upon the relevance and probative value of the similar fact evidence, is pertinent when determining the question of the relevance or probative value of the evidence of AR which was admitted by the Trial Judge.
· The evidence of AR could not be said to have sufficient probative value in relation to the question as to whether or not the father had sexually abused BR or CK. Although it was evidence of inappropriate behaviour towards a minor, and would clearly be relevant when considering broader parenting issues, it had little probative force in determining whether or not BR or CK was sexually abused. It should not have been relied upon by the Trial Judge.”
150.14Now, I turn to consider the so-called tendency evidence in this case.
The father was charged with having unlawful sexual intercourse with a person under the age of 12 years, namely P. The allegation by P was that whilst she and the father were at home together watching television the father was rubbing her leg. She says that he then moved his hand along her thigh, placed his fingers underneath her shorts, pulled aside her underwear and placed two fingers into her vagina. She says that the father moved his finger in and out of her vagina for approximately a minute before she stood up allegedly causing the father’s hand to come away.
The father denied these allegations. His evidence was that P asked him to scratch her back, which he did, then she asked him to scratch her legs, which he also did. In the course of scratching her legs he accidentally touched her on “her private parts”. He immediately realised what had happened and he pulled his hand back.150.15The jury of course acquitted the father of the charge, but in considering this matter I have to apply a lesser standard of proof. The mother’s counsel cross examined the father as to some inconsistencies between what he said in evidence at the criminal trial and what he put in his affidavit and what he said in oral evidence in this trial. However, although there were some inconsistencies which the father could not adequately explain, there was nothing of any consequence in my view, and certainly nothing in those inconsistencies such that the standard of proof required under Section 140 of the Evidence Act was satisfied. Thus, without even taking into account the cross examination of the mother as to the evidence that she gave at this trial and the inconsistencies between that evidence and her evidence in the criminal trial, although I must say that the mother’s evidence left a lot to be desired, I find that I am not satisfied that the father sexually abused P.
150.16Now, to repeat, the mother virtually conceded that a finding that the father sexually abused P was not open on the evidence in any event. However, the wife’s counsel then suggested that I could find that the father had “purposely, not accidentally” touched P in the vaginal area. However, in my view the evidence simply does not justify such a finding. I believe what the father says about what happened on this occasion, namely that it was purely accidental.
150.17In her final address the mother’s counsel took another tack and suggested that what the father did was “at least reckless”, and in any event was inappropriate behaviour. However, I do not accept this either. To repeat, I believe what the father says about this incident, and I agree with the submission of the counsel for the Independent Children’s Lawyer that there is a strong suggestion of collusion between the mother and P to concoct evidence against the father.
150.18Separate to this incident P alleged that when she was older the father would undo her bra, scratch her on the back and touch her breasts. The father denied that he ever touched her on the breasts, but he did scratch her back, and on one occasion he did undo her bra to better scratch her back. Again I accept the evidence of the father about this, and in particular that in the father’s family back-scratching was a common occurrence and there were no sexual overtones to this behaviour. Further, this was an activity that the mother herself engaged in and was comfortable with.
150.19Thus, not only am I not satisfied that the father sexually abused P but I find that there was no inappropriate behaviour by him towards her. Accordingly the evidence at the trial can have no probative value let alone significant probative value of any fact in issue in these proceedings.
Now, whether or not the father has conceded it or not, to repeat, I find that the father has not sexually abused A. Having made that finding the next question is whether there is nevertheless an unacceptable risk that the child will be sexually abused or at least the subject of inappropriate behaviour if the child spends unsupervised time with the father.
It has been recognised, including by the High Court in M and M (1988) FLC 91-979 that there is difficulty in defining with any degree of precision what constitutes an unacceptable risk (W and W [abuse allegations: unacceptable risk] [2005] FLC 93-235). However, in W and W the Full Court indicated that the questions posed by Fogarty J in N and S and THE SEPARATE REPRESENTATIVE (1996) FLC 92-655, at 82,714 provides a “structure or framework which may assist a Trial Judge to assess future risks to a child”. Fogarty J said this:
“In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
It can be seen that these are the very questions that I have addressed in providing my reasons for finding that I am not satisfied that the father has sexually abused or behaved inappropriately towards A. Thus, in my view there is not an unacceptable risk here and my reasons for that are the same as my reasons for not being satisfied that the husband has sexually abused or behaved inappropriately towards A.
There is no evidence as to the impact of these things upon A, but a hint of the negative effect can be seen from the need to call in a psychologist and speech therapist to investigate whether she has Asperger’s Syndrome. Of course, the other explanation of her behavioural and social difficulties is her emotional state generally following the upheavals of the last 3 to 4 years, but that does not make it any less a problem for the mother.
For the father’s part, with the allegations of child sexual abuse and inappropriate behaviour put to rest, there would appear to be no issue about the father’s capacity to meet the emotional needs of A. Indeed, throughout the time that he has been required to only spend time with A on a supervised basis he has been sensitive to her needs and although there had been occasional lapses his attitude towards A as observed and commented upon by the contact supervisors has been exemplary (Exhibit C1).
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Here I consider it useful to reiterate the respective assessments that Ms U made of the parties and of the child A.
Ms U reported that the mother “presented as a restless lady who often appeared perplexed and somewhat naïve about the processes and proceedings”.
Ms U described the father “as a very emotional man who became tearful at times”.
These descriptions accord with my own observations of the parties when giving evidence before me.
Finally, and significantly, Ms U reported that:
“[A] presented as a confident, assertive girl who is quite comfortable asking questions and giving her opinions. Her development was age appropriate; however she was mentally more mature than a nine year old.”
Clearly A’s maturity has assisted her in coping with all that has happened over the last few years, and this was particularly noticeable during the interviews by the police officer.
(h) if the child is an Aboriginal child or a Torres Strait Islander child;
the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part would have on that right;
This is not a relevant factor here.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
At different times each parent has demonstrated positive and negative attitudes towards the child, and to the responsibilities of parenthood. With the mother I highlight the following:
204.1In about March 2003 the mother formed a relationship with Mr G over the internet. She then visited him in June 2003 leaving the child with the father for two weeks saying that she was going to Melbourne for work. The mother then informed the father that she was moving to B to live and she was taking A with her. This was all done without any discussion or consultation and despite the extensive involvement that the father had had in the care of A up to that point. A became unsettled with the prospect of moving to Victoria and with the conflict between her parents about that, and that manifested itself in her behaviour at school. She became aggressive. As a result the school arranged for the intervention of a psychologist. However, it did not stop there. In October 2003 the mother, without telling the father, took the child to B during the school holidays. A returned exhibiting extreme distress and the father arranged for A to see the same psychologist again. Then, of course, in September 2004 the mother moved to B with A in breach of the injunction and that led to contravention proceedings in this court.
It is apparent that throughout this sorry episode the mother gave little thought to the effect on the child of her desire to move to B to pursue her relationship with Mr G. The child’s interests took a back seat to her own needs.
As it has now transpired Mr G proved to be less than a desirable partner. He drank to excess and he has taken a substantial amount of money from the mother. Their relationship is well and truly over and the mother and A have been left in B on their own with the sole reason for moving there in the first place now non existent. Yet the mother has refused to return to Adelaide and allow A’s relationship with her father to return to some form of normality. She has been able to achieve this as a result of the continuation of the order providing for limited supervised time between A and her father.
204.2The mother has not always complied with the order for monthly supervised contact. Contact was due to take place on 1 April 2006. The father attended but the mother and the child did not. The Contact Centre telephoned the mother and she said that the next court date had not been settled and therefore she was not going to come over for the contact session and then come over again for a court hearing. As a result the child did not see the father between 4 March 2006 and 6 May 2006. This indicates quite pointedly that the mother has no appreciation of A’s needs and of the importance of maintaining regular contact between A and her father.
204.3I have already referred to the extraordinary evidence of the mother that she allows A to go to and from school by herself on occasions and she leaves her alone in the house after school on occasions. This reflects poorly upon her attitude towards the child and to the responsibilities of parenthood. Indeed, as counsel for the Independent Children’s Lawyer said, this is particularly disturbing given the possible diagnosis of Asperger’s Syndrome.
204.4The mother’s perception of A is that she talks readily to adults but has difficulty getting on with and talking to other children. She said in cross examination that as a result children do not often visit their home. However, significantly the mother then said that she does not encourage this because the child doesn’t really want it, and because of her work. Now, once again, this highlights that the child’s interests are not always at the forefront of the mother’s mind. I find that the child has to fit in with the mother’s lifestyle and the mother has very little appreciation of the needs of A. This of course is clearly evidenced by her move to B in the first place. That was to meet her own personal needs.
204.5Whether it is because of the mother’s belief that the father has sexually abused both P and A, or whether it is something else, the mother’s actions indicates a clear intention to remove the father from the child’s life. Her move to B, her decision to stay, her reticence to bring the child over for each supervised contact session all point to that. In addition, despite the father’s involvement in A’s schooling in Adelaide, the mother has failed to even send the father any of the child’s school reports since she has been in B.
In relation to the father I highlight the following:
205.1Both prior to and following the separation the father cared for the child A when the mother was at work, and after separation he also cared for the child when the mother went out shopping or socialising with friends.
Because of the mother’s shift work each day was different and the father had to be available at short notice. He obliged in the interests of A.
205.2For a period of time the father paid for almost all of the expenses of A without any contribution from the mother. That included kindergarten fees, clothes, shoes, medical expenses, subsequently her school fees, her school uniforms, shoes and books, and the cost of before and after school care and bus fares. He even paid outstanding school fees after the mother removed A from South Australia.
205.3The father has remained patient and restrained in his attitude towards the time that he is able to have with A. He has attended every session and he has been able to make each one an enjoyable experience for A. To quote from the report prepared by the Children’s Contact Services (Exhibit C1):
“UNDERSTANDING OF CHILD DEVELOPMENT ISSUES
[The father] listened attentively to [A] when she was describing her days at school, her friends and her school work. He communicated at her level. Activities were initiated by both [A] and her father and he actively involved himself in all activities, both active and passive. There was often heard shared laughter during the visits particularly during games of hide and seek.”
(j)any family violence involving the child or a member of the child’s family;
There is no relevant allegation of family violence that requires consideration.
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There is no family violence order that requires consideration.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is always preferable to make such an order, but here whatever order I make there will be the potential for future litigation.
(m) any other fact or circumstance that the Court thinks is relevant;
There are no further issues to be considered here.
Section 60CC(4)
As referred to above, pursuant to Section 60CC(4) of the Act the Court must consider the extent to which each party has fulfilled or failed to fulfil his or her responsibility as a parent. I have considered this important issue when addressing Section 60CC(3)(c) and (i) of the Act, but in relation to some specific matters I make the following comments:
210.1Prior to the mother removing A from South Australia the father had taken every opportunity that had presented itself to participate in making decisions about major long term issues in relation to the child. To that point the schooling of the child was really the only issue that had arisen, but with the unilateral action of the mother in removing A to B the mother has excluded the father entirely from such decisions.
210.2The father has patiently and respectfully taken every opportunity to spend time with and communicate with A, and to repeat he has also made the most of every such opportunity. This is evidenced by the presence of a close and loving relationship between the father and A despite the severe limitations on their time together.
210.3On the other hand, apart from excluding the father from participation in any decision about major issues, the mother has also clearly failed to facilitate the father spending time with and communicating with the child. She says her reason for that is because she believes that the father has sexually abused P and A, but I am not convinced that that is the sole reason. She has wanted to pursue her own personal needs more than taking into account what is in the best interests of A.
210.4The mother, of course, has fulfilled her obligation to maintain the child, and although there are still arrears of child support I find that the father has done likewise. He paid for almost all of A’s expenses for a significant period of time and he is paying off those child support arrears as best he can.
Parental responsibility
The father seeks an order that there be a resumption of what his counsel describes as “joint parental responsibility”, and which I take to mean equal shared parental responsibility. The mother though seeks an order that she have sole parental responsibility. The Independent Children’s Lawyer supports an order that the parties have equal shared parental responsibility.
Of course, regardless of what the mother wants, pursuant to Section 61DA of the Act the court is required to apply a presumption that it is in the best interests of A for the parents to have equal shared parental responsibility for her.
The presumption does not apply though in certain circumstances, and it can be rebutted. Relevantly here it would not apply if I found that the father had sexually abused P and/or A. However, that is not the case and therefore the presumption applies. It can be rebutted if the evidence indicates that it is not in the best interests of the child for the parties to have equal shared parental responsibility. If A was to remain living in B with the father in Adelaide, then that would be a factor, but I will be ordering the return of the child to Adelaide.
The mother’s counsel suggests that it would be inappropriate to have equal shared parental responsibility given that that would in effect require the mother to “co-operate” with the father when she still believes that he has sexually abused her two children. That is true, but it is the child’s best interests which are paramount and not the mother’s. There is no evidence and no submission was made to suggest that A would be detrimentally affected in any way in these circumstances. The mother simply has to come to terms with the fact that the father must have an equal say in the major decisions affecting the life of A.
In the circumstances I propose to make an order that the father have equal shared parental responsibility.
On that basis the court is required under Section 65DAA(1) of the Act to consider whether the child spending equal time with the parents would be in the best interests of the child and reasonably practicable, and if it is, to make orders accordingly.
On the basis that the child will be returning to Adelaide the only issue here is the current capacity of the mother to work co-operatively and to communicate effectively with the father to ensure that A receives the most benefit out of such an arrangement. Historically this was the case before the mother took up with Mr G and then removed A from South Australia. It is obviously complicated by the allegations of child sexual abuse involving both P and A. However, given my findings in that regard and the need for the father to resume his important role in A’s life I consider that it is in A’s best interest to resume a shared care arrangement. Nevertheless, this has to be a gradual process given the suspension of contact for 19 months and then the limited time that the child has had with the father over the past two years. The mother will need a short time to readjust to life back in Adelaide and to prepare herself for the reintroduction of shared care. The onus is on her though to put the needs of A ahead of her own and to work cooperatively and to communicate with the father.
Conclusion
Having regard to the evidence, the submissions of the parties and the Independent Children’s Lawyer, and the principles relevant to my determination, and including in particular the objects and principles set out in Section 60B of the Act, I find that it is in the best interests of A that she return to Adelaide, that the parties have equal shared parental responsibility and that after a relatively short period when the time that the child spends with her father is increased, the child should spend equal time with each of the parents.
I have found that the father has not sexually abused A, and on the wider issue I have found that there is no unacceptable risk of sexual abuse occurring if the child spends time unsupervised with the father.
At the end of the day, and perhaps upon seeing that these might be the findings on the evidence, the mother’s counsel suggested that it was open to me to find that the father had behaved inappropriately towards the child or if not that there was an unacceptable risk of the father subjecting A to inappropriate behaviour if A spends time with him unsupervised.
The sorts of behaviour referred to was the father sleeping in the same bed as the child, bathing and showering with her, kissing her on the lips, taking photographs of her when she wasn’t fully clothed and generally treating her as an adult. Now, the evidence does not establish that the father and the child slept in the same bed as such, or that there were any legitimate concerns about bathing and showering. Certainly there was evidence of them kissing and of a photograph being taken which caused A to feel embarrassed, but there is no basis for finding that this was inappropriate behaviour or that it put the child at any risk.
As to where the child should live, namely B or Adelaide, there is no contest. The mother took advantage of the situation created by the allegations of child sexual abuse to unilaterally move to B and to stay there. Her primary reason for moving no longer exists in that she and Mr G have broken up, the allegations of child sexual abuse have come to nothing in both the criminal court and in this court, and it is in the child’s best interests that the father not only share equal parental responsibility for her but that she resumes spending equal time with her parents, and that requires the child to reside in the same town as both the father and the mother. That town should be Adelaide given that is from where the mother removed the child for her own personal reasons in pursuing her relationship with Mr G.
Although the mother’s counsel in her final address submitted that the child is settled in B, that B provides a safer and more secure environment than Adelaide, and that B has all the facilities that Adelaide provides, there was no evidence of that whatsoever. Indeed, the evidence was that the child was experiencing behavioural difficulties such that Asperger’s Syndrome was suspected. Further, the mother’s work commitments were such that the child was left to look after herself for periods of time and the child missed her father terribly and wanted to return to her previous school.
I find that the mother is able to obtain accommodation and employment in Adelaide and the child can return to her previous school. However, it seems the father is not insisting on that although the child has expressed a wish to do so. The mother has some reservations about that school and the father is willing to consider other schools. Thus I will leave that to the parties to work out. It will also depend on what part of Adelaide the mother decides to live in.
In relation to whether A has Asperger’s Syndrome or not, that still needs further investigation, but importantly for my purposes, Ms U said in evidence that if she does have this syndrome then there is no specific requirement that I need to address in framing the orders. She did stress though that it would be important for the father to be directly involved in any treatment regime, and if there was shared care there would need to be good communication between the parents about that treatment. I will be reintroducing shared care, and thus the onus will very much be on the parties and particularly the mother to follow through with this requirement.
Consideration also needs to be given to the timing of the child’s return from B, the length of the period before equal time commences, and what is to occur in that period. I find that the ideal result would be for the mother to return to Adelaide with the child such that the child can commence school at the start of the next school term. However, the mother may need a little longer than that to make the move and thus I propose to require the move to be completed within two months of the date of delivery of these reasons for judgment. Immediately though there should be a lifting of the requirement of supervision and the commencement of daytime contact. That should then increase to contact say over two days and then overnight such that after four months the child is able to spend alternate weeks with each party.
I certify that the preceding
226 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 27th day of June 2007.
……………………………………….
Associate
Key Legal Topics
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Family Law
Legal Concepts
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Injunction
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Natural Justice
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Procedural Fairness
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