D and M
[2001] FMCAfam 27
•23 March 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & M | [2001] FMCA fam 27 |
| FAMILY LAW – Children – Contact – Unacceptable risk of abuse – Allegations of inappropriate sexual behaviour – Traditional cultural and religious practice – Supervised contract would constrain development of child’s relationship with father – Order for stepped program of contact made. |
| Applicant: | S D H D |
| Respondent: | D M |
| File No: | ZP 0202 of 2000 |
| Delivered on: | 26 February 2001 |
| Delivered at: | Parramatta |
| Hearing Dates: | 16 & 17 October and 21 & 22 November 2000 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Heazlewood |
| Solicitors for the Applicant: | Messrs Mohini Gunesekera, Solicitors, PO BOX 1195, L |
| Counsel for the Respondent: | Ms Clifford |
| Solicitors for the Respondent: | Mrs Barbara Coddington, 61 Broughton Street, Kirribilli |
ORDERS
That all existing Contact Orders are discharged.
That the Father have contact with the child L R D born 29 January 1996 as follows:
(a)Each Saturday from 10.00am to 2.00pm for a period of four weeks commencing the first Saturday after these Orders;
(b)Upon the completion of contact ordered in 2.1 each Saturday from 10.00am to 5.00pm for a period of eight weeks;
(c)Between 10.00am and 2.00pm for a period of four weeks commencing at the conclusion of contact ordered pursuant to 2.1 and 2.2 of these Orders;
(d)Upon the completion of contact ordered at 2.1, 2.2 and
2.3 contact from 10.00am until 5.00pm each Saturday;(e)For two hours on L’s birthday in years ending in an even number and for two hours the day following L’s birthday in years ending in an odd number;
(f)From 4.00pm to 6.00pm on the Father’s birthday;
(g)Weekend and Holiday Contact :
(i)Upon condition that the Father has attended and completed the “Hey Dad” program run by Barnardo’s, or an equivalent program, that the Father have contact:
(ii)Each alternate weekend from 10.00am Saturday to 5.00pm Sunday commencing on the October long weekend 2001.
(h)Holidays:
(i)For one week in the December/January 2001 Christmas school holidays at dates and times agreed by the parties;
(ii)For one week in each Easter and September school holidays commencing Easter 2002 at dates and times agreed by the parties;
(iii)For two weeks of the December/January 2002/2003 Christmas school holidays alternating between contact during the first half of the Christmas school holidays and occurring during the second half of the Christmas school holidays at dates and times agreed by the parties.
In the event that Father’s Day does not fall on a contact weekend, contact shall take place from 9.00am Father’s Day until 6.00pm Father’s Day.
In the event that Mother’s Day falls during a period when the child would otherwise be with the Father, contact shall conclude at 6.00pm on the Saturday night immediately preceding Mother’s Day.
School holiday contact.
(a)Shall commence at 10.00am;
(b)Shall conclude at 6.00pm;
(c)Will be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)Pupil free days are deemed to be school holidays.
One week shall mean seven complete nights, commencing at 10.00am on the first day and concluding at 6.00pm on the last day.
Two weeks shall mean fourteen (14) nights commencing at 10.00am on the first day and concluding at 6.00pm on the last day.
Contact Ordered pursuant to Order 2.7 of these Orders shall be suspended during school holidays.
That the Father shall give the Mother no less than 42 days written notice as to the weeks during which he will exercise contact during school holidays.
In the event that the parties do not agree as to dates upon which contact is to be exercised during Easter and September school holidays, the Father shall have the child for contact during the first week of holidays commencing in odd years and the second week during the second half of holidays commencing in even years. For these purposes years ending in 0 are even years.
In the event that the parties do not agree as to dates upon which contact is to be exercised during Christmas school holidays, the Father shall have the child for contact starting the first week of holidays commencing in odd years and the second week during the second half of holidays commencing in even years. For these purposes years ending in 0 are even years.
That the Mother shall cause the child to be delivered to the Father at McDonalds at L at the commencement of contact and the Father shall return the child to the Mother or her nominee at L McDonalds at the conclusion of contact.
That contact pursuant to Orders 2.1 and 2.2 shall be supervised by
Dr C S.That both parties be and are hereby restrained from speaking to L in a negative fashion about the other party or permitting any other person to speak negatively about the other party within the child’s hearing.
That the Father and Mother attend confidential counselling with Unifam Centacare or Relationships Australia for post order counselling. The Mother to nominate the agency within 14 days and both parties to do all things necessary to start counselling within
7 days thereafter. In the event that there is a fee attached to the counselling, the parties are to pay one half each. AND THE COURT REQUESTS Mrs C M to participate in this counselling if requested by the agency.That all exhibits are returned at the expiration of 28 days.
That the party who caused subpoenaed documents be produced return those subpoenaed material to the owner at the expiration of twenty-eight (28) days.
That all outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 0202 of 2000
| S D H D |
Applicant
And
| D M |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings are for parenting orders, namely contact orders relating to L R D born 29 January 1996 (“the Child”).
The applications
S D H D (“the Father”) filed an Application for Final Orders on 5 June 2000. On 3 July 2000, his application was transferred to the Federal Magistrates Court. In this application, the Father sought orders that essentially provided for regular alternate weekend contact, contact for half of all school holidays and other defined contact that addressed special days. At the commencement of the hearing, the Father's Counsel included in the trial documents, details of the orders sought at trial. The orders proposed attendance at the “Keeping Contact” program and a progressive stepping up of contact leading up to unsupervised weekend contact.
Ultimately, the orders sought at the final hearing by the Father are those contained in the document “Proposed Orders sought by Husband” which became an exhibit in the proceedings. The orders he sought were :
(1)(a) That the Applicant had contact with the child L R D date of birth 29 January 1996 each Saturday from 10am to 5pm supervised by Dr C S (C) for a period of eight weeks;
(b)When exercising contact that the applicant accompanied by C pick up the child from McDonalds at E Drive, L at the commencement of contact and return the child to McDonalds at the end of contact;
(2)(a) Thereafter the Applicant have unsupervised contact every Saturday from 10am until 5pm for a period of four weeks;
(b)For exercising contact in 2a the Applicant pick up and return the child from McDonalds at E Drive, L and return the child to McDonalds;
(3)Thereafter the Applicant have unsupervised contact as follows:
(a)Every other weekend from 10am Saturday to 5pm Sunday;
(b)One week of the Easter and September holidays and two weeks of the December/January holidays, the week to be nominated by the applicant;
(c)That the applicant have contact every Thursday during the school term for three hours the applicant to collect the child from the school and return the child to the wife’s residence;
D M (“the Mother”) filed a Response to the Father’s initiating application on 17 July 2000. She filed an amended Response on
16 October 2000 which document identified the orders sought by her at trial. The Orders she sought were:
(1)The husband’s application be dismissed.
(2)That Orders 3(a), 3(b) and 3(d) made by consent on 10 February 1997 be varied as follows:
(a)That the husband have supervised contact with the child L R D, born 29 January 1996 for a period of 4 hours per week :
(i)From the date of these Orders until 22 December 2000 being the date when the pre-school concludes for the Christmas holiday period, contact shall take place at the
L Pre-School each Tuesday from the hours of 10.00 am. until 12.00 noon, and each Friday from 10.00 am. until 12.00 noon;(ii)From 5 January 2001 until January 2003, contact shall take place on each Friday between the hours of 4.00 pm. until 8.00 pm., or in the alternative, each Saturday from the hours of 9.00 am. until 1.00 pm. at the self-contained two-bedroom unit situated adjacent to the main residence at 32 A Street, L or such other venue as agreed to between the parties.
(b)That contact be exercised under the supervision of the staff of Fox Welfare Services or such other organisation as agreed to between the parties.
(3)The husband shall bear the costs of contact visits and in the event that the husband does not pay the costs of an incidental to such contact visits, that the Orders for contact herein shall not apply.
(4)In the event that either party wishes to vary the times for contact, then that party shall give the other party written notice not less than 7 days prior to such variation of the time of contact.
(5)In the event that the husband provides the notice as set out in Order 4 herein, then he shall be at liberty to have “catch up” time and shall advise the wife in writing of the times for the make-up contact.
(6)In January 2003, both parties shall attend counselling conducted by the Family Court for the purpose of reviewing contact arrangements.
(7)THE COURT NOTES THAT it is the practice of the wife to take her annual holidays during the week containing Christmas Day and that this holiday takes place outside the Sydney metropolitan area.
(8)The husband pay the wife’s costs incidental to this application.
Background facts
H D was born on 5 January 1961 and is forty years old. D M was born on 16 July 1969 and is now aged thirty-one years. Both parties were born in Sri Lanka. They commenced their relationship during 1983 at which time the Father was in his early twenties and the Mother a teenager.
In 1989 the respondent Mother, her mother Mrs C M and her brother D M migrated to Australia. The Father was employed by Air Lanka as a flight steward. He travelled to Australia on a small number of occasions during which occasions he made contact with the Mother. During 1991, the Father also migrated to Australia. Upon his arrival, he took up residence with the Mother in the home she was living with her family. The Mother’s sister P and her husband owned the home. In addition to the parties, the respondent’s mother, her brother, her sister and brother-in-law also lived there. The Father lived there for about nine months after his arrival.
On 19 November 1991, the Mother gained permanent residency status in Australia. Subsequently the Father received permanent residency status.
The Father was un-employed upon his arrival in Australia. He moved out of the Mother’s home after he gained paid employment. The parties maintained an on again off again relationship until their marriage 27 February 1995. Upon their marriage the Mother left her family home and took up residence with the Father in their own rented accommodation. This was the first time the Mother had lived separately from her mother.
The Mother alleges that the Father was violent to her both prior to and during the marriage. She alleges that the violence resumed in about March 1995. She says that one or two times a week the Father would beat her and that after each beating she would return to live with her mother. She alleges that during the course of their marriage the parties did not live together for longer than one week at a time. The Father agrees that there were violent incidents between the parties. He denies violence of the nature and extent alleged by the Mother.
There is one child of their marriage, L R D (“the Child”) who was born on 29 January 1996. The parties separated in either October or November 1996. A great deal of time was spent distinguishing between the disputed dates of separation. Nothing material turns upon the distinction.
After L’s birth, the Mother returned to full-time employment. She worked approximately twelve hours a day including working at night as a cleaner with her mother and brother. The Father worked with L L, mostly working an evening shift from 2pm until 9 or 10pm. The Father was employed as a Relief Manager and says he structured his working hours to be able to care for his daughter in the morning while the Mother was at work. The Mother denied that the Father cared for the child on these mornings.
The Mother had returned to work when the child was about two months old. She left home in the morning at about 6.30am, returning around 6.00pm and then left for her second job between about 12.30 - 1.00am coming home at about 5.30am. The Mother and her mother deny the Father’s care of the child pre-separation was as extensive as alleged by the Father. It is their evidence that during the day when the Mother was at work; the maternal grandmother cared for the child. I do not accept that evidence. Rather I prefer the Father’s account that he cared for
L until he delivered her to the maternal grandmother at about 1.00pm, shortly before he started work.On 31 December 1996 at a party, there was a violent incident between the parties. The Father alleges that some days prior to New Year’s Eve the Mother had returned to her mother’s home taking
L with her. He says this was done without his consent. Upon arrival at the party, the Father spoke firstly to Mrs C M. The Mother then brought the child outside and an argument started between the parties. During the argument, the Father concedes that he hit the Mother and that she fell to the ground. He grabbed the child and left the party. The Mother, her brother, sister and another person reported the incident to the police. Without police intervention, the Father returned the child that same evening to the Mother.
On 10 February 1997, the parties entered into Consent Orders at the Local Court at L. The Orders provided:
(1)That the child L R D (born 29 January 1996) reside with the wife.
(2)That the wife have sole responsibility for making decisions about the day to day care, welfare and development of the child.
(3)That the husband have contact with the said child as follows:
(a)Each Saturday from 10am to 12 noon;
(b)One other day each week from 10am to 12 noon, provided the husband gives the wife’s mother C M. at least twenty-four hours notice by telephone of his intention to exercise contact;
(c)At other times as agreed between the parties;
(d)Contact is to be exercised under the supervision of C M. and at the home of the wife’s mother.
(4)That the husband not consume intoxicating liquor during or for a period of twelve hours before the commencement of contact.
(5)And the Court requests that Australian Federal Police do all things necessary to enter the name of the said child on the port of exit watch list.
On 17 February 1997, an Apprehended Violence Order was made against the Father for the protection of the Mother. The order was for two years duration. The terms of the Apprehended Violence Order were as follows :
Statutory orders:
Not to engage in conduct which intimidates the protected person or any person with whom the protected person has a domestic relationship, and not to stalk the protected person plus the following Orders:
1.Not assault, intimidate, threaten, molest, harass or otherwise interfere with the person in need of protection.
2.Not to reside at, enter, or go within five hundred metres of the premises at (home) 32 A Street, L except in the pursuant of Family Law Orders.
3.Not to approach or contact the person in need of protection except in strict compliance with Family Law Orders.
4.Not to contact the person in need of protection by telephone except for the sole purpose of arranging access to children.
5.Not to approach the person in need of protection whilst under the influence of intoxicating liquor or drugs.
It is common ground between the parties that since February 1997 C M has been the child’s prime care-giver. Since separation, the Mother and child have resided continuously with the maternal grandmother at
32 A Street, L.On 27 May 2000, the maternal grandmother employed M O to build bedroom cupboards at her home. On 3 June 2000, Mr O was at the home carrying out the contracted work. Mr O observed behaviour between the child and Father that concerned him, which behaviour he reported to the maternal grandmother.
On 6 June 2000 the maternal grandmother made contact with the child protection service at the Department of Community Services. She was advised to attend for an intake interview at her local district office. Neither she nor the mother did so in the following months. The mother says that she was busy with her employment and could not take time to attend an intake interview.
On 4 July 2000 the Mother obtained a further Apprehended Violence Order against the respondent. The Order includes the maternal grandmother and D M as protected persons. The terms of the order are:
ORDERS MADE UNDER S562 BC:
(1)The defendant must not engage in conduct that intimidates the protected persons or any other person having a domestic relationship with the protected person.
(2)The defendant must not stalk the protected person.
OTHER ORDERS MADE:
(1)The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected persons.
(2)The defendant must not go within five hundred metres of the premises of which the protected persons may from time to time work or other specified premises.
(3)32 A Street, L except as provided for an access as to contact with L.
(4)That the defendant must not approach, contact or telephone the protected persons, except as agreed in writing or for any purpose committed by an order or directions under the Family Law Act 1975, as to counselling, conciliation, or mediation.
(5)The defendant must not approach, contact or telephone the protected persons except for the purpose of arranging or exercising access to children as agreed in writing or as otherwise authorised by an Order, or a registered parenting plan under the Family Law Act 1975.
(6)The defendant must not approach the protected persons within twelve hours of consuming intoxicating liquor or drugs.
(7)That the Court extend the application of these orders to include the following persons, with whom the protected person has a domestic relationship C M born 19 December 1945 and D M born 25 June 1975.
On 17 July 2000, after a defended hearing, Interim Orders were made as follows:
(1)That pending further Order, Order 3 of the Consent Orders made on 10 February 1997 be suspended.
(2)That pending further Order, the applicant Father have contact to the child L R D born 29 January 1996 as follows:
(a)Each Tuesday and Friday starting at 9.30 am. and finishing at 11.30 am;
(b)At such other times as agreed between the parties;
(c)That pending further order, contact takes place at
L Pre-School, W Road, G V in the general presence of staff of the pre-school.(3)Otherwise Orders were made preparing the matter for a final hearing and included an order for the preparation of a Family Report.
Issues before the court
These issues appear to be:
b)The nature of the child’s relationship with the Father;
c)Whether the Father presents a risk to the child of physical, psychological and sexual abuse;
d)The Mother’s attitude to the child’s relationship with her Father;
e)The effect on the child of unsupervised contact;
f)The effect on the Mother of unsupervised contact;
g)The capacity of the child to develop and maintain a relationship with the Father in the context of continuing supervised contact.
The father’s current circumstances
The Father has not re-partnered. He lives at 88 L Avenue, M in rented accommodation with his flat mate, S V. They are good friends and have known each other for about ten years. The premises comprises a four-bedroom home. The Father and Mr V each have their own bedroom and one of the spare bedrooms has been furnished by the Father as L’s bedroom. The Father is employed for 25-30 hours each week by L L. He obtained casual employment working at the Sydney 2000 Olympics and at the Paralympics. His work with L L is structured around a 5.00 pm - 10.00 pm roster and sometimes involves work on the weekend.
The father’s proposals
The Father seeks to change the nature and extent of contact he currently enjoys with L. He seeks firstly that the contact no longer be supervised. Although he does not see the necessity for participation in the Unifam “Keeping Contact” program, he gave evidence that he will attend the program. Exhibit “AF1” comprises an undertaking to that effect. It also includes an undertaking that he will not physically chastise the child. The contact would then be extended in a staged program, moving from Saturday daytime contact to alternate weekend and school holiday contact.
The Father is a Buddist and attends the Sri Lankan Buddist Temple at S. He would take L to Temple with him whilst she is on contact. He would like to take L to swimming or other regular activities that occur during contact time. The Father is part of a broader Sri Lankan community and has established close connections with families that include a number of children. During contact, he proposes that L would spend time with him and his friends and their children. His family has not migrated to Australia and these friends are the closest people with whom he has significant relationships in Australia. His work time is flexible and he can enjoy block periods of contact during the child’s school holidays. He believes that his relationship with his daughter will be enhanced if his contact can be exercised other than on a supervised basis and under the constraints proposed by the Mother.
At the conclusion of the proceedings he conceded that a period of supervised contact was appropriate, nominating Dr C S as a supervisor.
The mother’s current circumstances
The Mother has not re-partnered. She lives with her mother and brother at 32 A Street, L. This is the maternal grandmother’s home. It is a four-bedroom house. L has her own bedroom. Recently the home has been extended and at the rear of the property there is a self-contained two-bedroom unit. It is in this unit that the Mother proposes that contact take place. She is employed as a store-person and works 6.00 am - 3.00 pm Monday to Friday. She relies on her mother and brother to take L to pre-school, to swimming and to ballet. On the weekend, Sunday is the only day she can be certain that she has off. If she works on either Saturday or Sunday, she does not have to work Monday. Like the Father, she is a Buddhist. Her family is a close one and they attend the Buddhist Temple at L. The L Temple is predominantly a Thai temple.
The mother’s proposals
In her amended Response, the Mother proposed orders the effect of which would be to maintain supervised contact. Until 22 December 2000, contact would continue to take place at the ‘L Pre-school’, two days per week and for two hours on each occasion. From 5 January 2001 until January 2003, supervised contact would occur on Fridays or Saturdays for four hours. This contact would be confined to a self-contained unit, adjacent to the Mother’s home or such other place as may be agreed to between the parties. The Mother proposes that Fox Welfare Services be engaged to provide supervision, unless another organisation is acceptable to the parties. The cost of contact supervision to be paid for by the Father.
In January 2003, the Mother proposes that the parties would attend counselling and review the contact arrangements. The Mother did not indicate that the January 2003 counselling would be aimed at introducing unsupervised contact.
Evidence
There were tendered in evidence documents on behalf of both parties. A Family Report, prepared by Court Counsellor Veronica Seres was received into evidence.
The evidence called in support of the Applicant Father’s case was as follows:
(1)
Applicant’s Affidavit sworn 8 September 2000 and filed
11 September 2000 and his oral testimony.
(2)Affidavit of V L sworn 8 September, and filed 11 September 2000 and her oral testimony.
(3)Affidavit of D (B) D sworn 11 September 2000, and filed
11 September 2000 and his oral testimony(4)Affidavit of T D affirmed 28 September 2000, filed 6 October 2000 and his oral testimony.
(5)Affidavit of S V sworn 8 October 2000, filed 9 October 2000 and his oral testimony.
(6)Affidavit of C S sworn 16 October 2000 filed in Court and her oral testimony.
The Respondent Mother called the following evidence:
(1)Affidavit of Dr S B sworn 5 October 2000, filed 9 October and his oral testimony.
(2)Affidavit of D M sworn 5 October 2000, filed 9 October 2000 and his oral testimony.
(3)Affidavit of M O sworn 7 October 2000, filed 9 October 2000 and his oral testimony.
(4)Affidavit of C M sworn and filed 9 October 2000, and her oral testimony.
(5)Affidavit of the Respondent Mother sworn and filed 9 October 2000, and her oral testimony.
(6)Affidavit of P K sworn 10 October 2000, filed 13 October 2000 and her oral testimony.
(7)Affidavit of J P S sworn 20 October 2000 filed 21 November 2000. This witness was not cross-examined and I accept her evidence.
Credit
A significant witness in these proceedings was Mrs C M. She is the Respondent’s mother and the child’s maternal grandmother. Mrs M has been keeping a diary identifying events and concerns relating to the exercise of contact by the Father with the child. This diary has been kept on the advice of a chamber magistrate and I am satisfied was maintained for the purpose of possible use in any application by the Father for contact.
The maternal grandmother and the Mother place great reliance on the diary, suggesting it comprised a contemporaneous record of relevant incidents. The entries were voluminous and numerous. In cross-examination the maternal grandmother conceded that about ten percent of the entries were made other than contemporaneously and I am satisfied that there is a margin of error of at least ten percent of the details contained in the recorded material. That the margin of error includes matters of significance is epitomised by two events.
On 29 September 1999 Mrs M recorded in her diary that contact occurred between 10.48 am and 12.30 pm. She said that the contact occurred at her home. Records from S S Private Hospital which were exhibited in the Father’s case disclose that the Father was a patient at the hospital from 26 September 1999 until 4.26 p.m. on 29 September 1999. When pressed as to the apparent discrepancy the maternal grandmother could not explain the contradiction. After reflecting overnight, she gave evidence the next day that contact had taken place at the hospital. She was obviously disconcerted when giving evidence on this issue and I do not accept her oral evidence.
Next there is a clear inconsistency between the time when Mr O says he observed and reported the “lap-sitting” incident on 3 June 2000 and the notes written in the diary. Mr O checked the time against his watch and I accept his evidence concerning 9:00 am. The maternal grandmother’s diary note indicates a later time.
Thus I am satisfied that the diary notes contain significant errors on material matters. These are not inconsequential events that might have been written up carelessly. Rather the 3 June 2000 incident is a significant event and the contact records were said to be reliable. I do not accept that the diary is an accurate document. To the extent it is suggested that I should accept it as a corroborative document, I reject the submission. The manner in which it was created and the obvious errors on important matters satisfy me that the Court should give it no weight, unless corroborated by independent sources or conceded by the Father..
Relevant law
Contact and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
When there are force final orders parenting orders, an applicant must demonstrate that there exists a substantial change in circumstances subsequent to the making of those orders. This principle has been consistently stated in the authorities. It is a specific application of the paramountcy principle. Rice and Asplund (1979) FLC 90-725, D and Y (1995) FLC 92-581. This is a preliminary issue that may be determined as a threshold matter or at the conclusion of the hearing. Bennett and Bennett (1991) FLC 92-191.
An important issue in these proceedings is whether unsupervised contact by the Father will pose an unacceptable risk to the child of sexually inappropriate behaviour. The legal principles to be applied in the case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. It is not the role of the court to determine the truth of allegations in the way that a criminal court must do. The High Court discouraged such findings saying that there are “strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.” Ibid at 77.
Before it can make a positive finding that a parent has sexually abused a child, the court needs to be satisfied according to the civil standard of proof (see s 140 of the Evidence Act 1994 (Cth). The finding is made by reference to the test identified in Briginshaw v Briginshaw (1938) 60 CLR 336. In this case Dixon J said: “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences of flowing from a particular finding are considerations which must affect 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 proof, indefinite testimony, or indirect inferences.” Ibid at 362.
In WK v SR (1997), FLC 92-787 it was held, in applying the Briginshaw test, that given the gravity of the offence, a finding of child sexual abuse can only be justified by evidence satisfying a standard of proof toward the strictest end of the civil spectrum.
Thus, if the court determines that it cannot or should not make a positive finding that there has been sexual abuse, the court must determine whether in all the circumstances there is an unacceptable risk. The manner in which the court conducts an assessment of the risk of future harm is set out in A v A and A Separate Representative (1998) FLC
92-800. Although in those proceedings, the Full Court of the Family Court was assessing the risk of future physical harm to children, the approach there described is applicable to all allegations of future harm. The Full Court said: “The task which His Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband … In reaching a conclusion on that issue, it is necessary for the court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact. In cases of this sort, often it is not possible for the court to form a positive view at one end or the other end of this scale of dissuasion and it is not necessary for it to do so.”The findings made in the assessment of risk address part of the court’s responsibility. Whilst the resolution of the risk issue may be the central issue in proceedings, the court’s role is broader in that it must determine the best interest of the child having regard to the relevant
s68F (2) factors in the context of the matters contained in s60B.
In M v M the High Court said: “The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.” Ibid at 76.The nature of supervision, and the responsibility of supervisors when a court has found that there is an unacceptable risk of future harm is dealt with by the Full Court of the Family Court in B v B (1993) FLC 92-357 at 79, 780 and 79, 781. “Family and friends are not neutral, but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense, they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children’s behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.”
“For the above reasons, it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.”
Family violence is also a significant issue in these proceedings. The manner in which the Court must examine family violence is identified in JG and BG (1994) FLC 92-515 and also Patsalou and Patsalou (1995) FLC 92-580. Evidence of family violence is relevant insofar as it assists the Court in determining what orders will best promote the interests of the children. The Court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. So far as the evidence allows, the Court will attempt to understand the nature of any violence that has occurred and its potential effects on children. Exposure by a child to violent family relationships can be harmful to a child’s emotional development. Even if the issue is not addressed in submissions, the Court has a responsibility to consider the effect on a child of a violent parental role model. Blanch v Blanch and Crawford (1999) FLC 92-837.
Section 68F(2) determining the child’s best interests
The child’s wishes
It is the Mother’s case that L does not wish to have contact with the Father. Both she and her mother give numerous examples where they say L has been upset and unhappy before, during and after contact. During her meetings with Court Counsellor Seres, L said to the Counsellor: “My Daddy is yukky.” On her third visit, however, to the Counsellor, Counsellor Seres reports: “She asked to play with her Father.” During the observation session, however, L hid from her father when he arrived. When she came out of hiding, though, she “seemed pleased to see him.” The observation session was short, finishing earlier than the Court Counsellor had allocated. This was because L became distressed by the Father’s encroachment on her personal space.
By contrast, after Orders were made on 17 July 2000 for contact at the L Pre-school, the pre-school director had the opportunity to observe L’s interaction with the Father twice weekly for some months.
The Director, Ms L, swore an affidavit in the proceedings and gave evidence. She was clear and concise in her evidence. She was an impressive witness and I accept her evidence in its entirety. She said that L has been quite keen to see her father and on occasion has asked: “Is daddy coming in today?” After the first two occasions of contact at the pre-school, L cried and did not want her father to leave.
The pre-school Director's positive observations of father/daughter contact at L must be contrasted with the evidence given by the Mother and her mother about L’s reaction to contact at the pre-school. The effect of their evidence is that L was unhappy about seeing her father at school and her statements to them are uniformly critical of that contact. For example: “It is good T is coming to see me at pre-school. V is there and T can’t hit me. He can’t kill my good Ammi.” And “I don’t want to go to school.”
Ms L reports on L’s confusion at the commencement of some pre-school contact visits when L said: “My mum has said they don’t like my dad.” It would appear that the Father’s role as her father has not been clearly reinforced in the Mother’s environment, such that on the first occasion of pre-school contact L called her father “Uncle”. Ms L rectified the greeting, telling L: “That is not your uncle, he is your daddy.” L now calls her father “Daddy”. On arrival at pre-school L has told staff “I am not allowed to play with him”. L is delivered to pre-school by her mother’s brother D and on occasion her maternal grandmother. L’s words strongly suggest that the adult’s who have her care direct a prohibition against play with her father to her.
I am satisfied that I should place greatest weight on Ms L’s evidence as compared to the evidence called by the parties in assessing L’s wish for contact.
I am satisfied that the Mother’s home is critical of the Father and is openly negative of L’s contact in the child’s presence. Even if she did wish to see her father, I am satisfied that given her young age and environment within which she lives, L would be most unlikely to make any positive statements in favour of contact to the Mother or members of her family. By contrast, Ms L’s evidence shows that L mostly looks forward to seeing her father and enjoys his contact. L has become distressed when he is leaving. The Court Counsellor did not have the same extended involvement with L and the Father. Ms L’s greater exposure to the child satisfies me that I should prefer her evidence to that of the Counsellor’s on this issue. I find that L does desire to have contact with her father. She is ambivalent about how that contact should be exercised and her wish is undermined by her mother and mother’s family.
The nature of the child’s relationship with each of the parents and other persons
Both parties agree that Mrs C M is L’s prime care-giver. Mrs C M has been substantially involved in L’s care since her birth. These young parents both worked hard to establish themselves financially in their adopted country. When the parents were unable to care for L, usually only because of their working commitments, L was cared for by the maternal grandmother at her home. Following the separation, L and her mother returned to live with the maternal grandmother as they still do. Since separation, the Mother has worked long hours and the Father has had limited contact to the child. Mrs M has almost exclusively attended to L’s needs. This has extended to managing, at the Mother’s request, contact arrangements between L and the Father.
Mrs M’s responsibilities have included taking L to the Doctor, making enquires of the Department of Community Services and taking L to Dr W to explore the shared concern about the Father’s behaviour with his daughter. During the observation session the Court Counsellor observed: “L seemed at ease and comfortable with her grandmother. In turn, Mrs M was quiet and gentle in her interaction with L. … There was much laughter and smiling.” The Counsellor concludes: “This assessment suggests that her primary attachment leans a little more towards her grandmother over her mother.”
That this is necessarily so, is a logical concomitant from the extensive care, almost exclusive responsibility, which Mrs M has exercised over L since the separation. I am satisfied that Mrs C M has been L’s prime care-giver and is the person to whom L has her closest attachment.
Similarly, the Court Counsellor’s observation of L and her mother demonstrate a warm and close relationship. Court Counsellor Seres reports: “They worked quietly together” and concludes: “She (L) is clearly fond of all these family members.” I accept this conclusion and am satisfied that L and the Mother have a warm and pleasant relationship. L clearly distinguishes between her mother and grandmother, referring to her mother as “Ammi” and her grandmother as “Kukku Ammi”.
The Mother’s brother, D, has assumed a significant role in L’s life. He lives in the Mother’s home and is 25 years old. He has:
·Taught L to operate a computer;
·Plays computer games with her;
·With her – plays with her toys, racing tracks and cars;
·Plays cassette tapes of nursery rhymes and sings with her;
·Reads her stories;
·Plays educational games such as identifying numbers and letters;
·Has taught her to use her roller blades;
·On at least 70% of the time, has taken L to and from pre-school;
·Takes L to her dancing lessons.
His involvement in L’s life since separation has been much more extensive than has the Father’s. This extensive involvement in all probability, combined with a negative home environment towards the Father and the Father’s lack of opportunity to develop his relationship with his daughter, has contributed to the confusion Ms L noticed in L’s understanding of who the Father was. For the majority of her life, it is D who has been the prime male role model in L’s life. He is included in the Counsellor’s description of family members and I agree with the Counsellor that L is fond of D and I am satisfied she is closely attached to him.
L was not yet one year old at separation. Since separation the Father has not been permitted by the Mother to exercise overnight contact to the child. Contact has been exercised at the Mother’s home, primarily supervised by Mrs C M. The Mother and other members of her family have also been present during periods of contact. Initially the Mother chose to remain away during contact. Now , however, unless she is at work she often remains on the premises and observes contact through the lounge room windows. Contact was exercised on the front verandah of the maternal grandmother’s home and in the yard. The Father was also able to take L to his car and on occasion he and the maternal grandmother went shopping. Exhibit “AF3” comprises a rough diagram of the front verandah where contact was exercised. It is a small covered space that has two chairs.
Prior to separation, I am satisfied that the Father was considerably involved in L’s care. I accept his evidence that before he went to work he would bathe L, feed her and attend to her needs until it was time to take her to her maternal grandmother’s place. T D corroborates his evidence. Mr D was a most satisfactory witness. He has known the Father for about 16 years. After L’s birth and prior to separation, he visited the Father at the former matrimonial home. He visited at least a dozen times. Whenever he visited, the Father was alone with L and during those visits he observed him bathing, feeding and dressing L. He was cross-examined with specificity on his recollections and I am satisfied that I should accept his evidence.
D D B D provides further corroboration of the Father’s care of L. Mr D has known the Father for about 20 years and the Mother for about
9 years. Prior to separation, he regularly visited the parties at the former matrimonial home. His evidence is: “I have seen H feed L, give her a bath, clean her, change nappies, give her a bottle. On the few occasions that they were both present, I have seen them sharing the responsibility for L. Sometimes H would do things for her and at other times Diane would.” The Mother’s evidence is that the Father played a very minor role in the care and supervision of the child prior to separation. She said: “When he was not at work, he did not assist me with the care of the child. He did not bathe, feed, change nappies or play with the child.” I do not accept the mother’s evidence as to the extent of the Father’s involvement in the care of the child prior to separation. On this issue I prefer the Father’s evidence.
The Father’s involvement in the care of the child prior to separation gave him the opportunity to begin and develop an appropriate father/daughter relationship with the child. Being involved in her care, provided the structure for her to develop an attachment to the Father, as a part of which, L became used to her father being one of the adults who met her primary physical and emotional needs.
In the 12 months post separation, the Father attended the maternal grandmother’s home at least 2 days a week and on occasion as many as 3 or 4 days per week. This continued for about 12 months.
After the Consent Orders were entered on 10 February 1997, the Mother said to her mother: “I want you to be the communicator of any necessary messages between H and myself, and for you to arrange and supervise contact times. Do not allow H to take L away from the home or the immediate surroundings.” The maternal grandmother agreed and this arrangement has been adhered to until the Orders were subsequently varied. The maternal grandmother described her relationship with the Father as “Our relationship has been a distant one from the beginning”. For his part, the Father described his relationship with the maternal grandmother thus: “I believe that my ex-mother-in-law dislikes me and will do anything to hurt me, including causing harm to L.”
It is against this climate of mistrust and dislike that the Father has attempted to maintain and develop his relationship with L subsequent to separation. The contact environment I am satisfied, has been an impediment to the Father and child developing a close and comfortable relationship. During contact, L has made statements to the Father such as: “you are not my daddy”, “you are dangerous”, “you do not do anything for me”. When asked by the Father why she makes these statements, L said: “Kukku Ammi said to me”.
L’s statements and behaviour towards the Father demonstrates confusion by her about the nature of their relationship. I have already made a finding about her confusion as to his identity as her father rather than an uncle. L’s behaviour during the Family Report session and at L Pre-school reinforces that she is confused. The confused nature of her relationship is described by Ms L in Exhibit “AF2”. Ms L’s evidence is as follows: “L is sometimes confused about how she feels towards her father. At times she wants to play with him, holding his hand, pulling him over to activities and playing games with him. Than (sic) she will tell him that she doesn’t like him and to “go away”. She also said: “On arrival, L is confused about how she wants to react to him. She has spoke (sic) to the staff saying ‘I am not allowed to play with him’, ‘go away, you are not my friend’. Within the next hour she will be telling him ‘I love you daddy.”
Ms L observed that the Father was unsure about how to establish contact with L and deal with her conflicting acceptance and rejection of him. Ms L told the Father that he was trying too hard and that he should stand back and let L come to him. The Father accepted the advice offered by Ms L and during the contact sessions at L learned to allow L to have her own space and to variously play and seek him out as she wished. By giving L the opportunity to decide when to interact with him, the pressured nature of the early visits reduced and contact at the pre-school became a happy experience for father and child. Although contact had commenced at the pre-school, the Father was still learning from Ms L how to manage L’s confused behaviour towards him when the family Report interviews took place. The observation session reported upon by the Court Counsellor shows at that time the Father was still quite unable to understand L’s confusion and to respond to it in a way that did not become distressing to the child. His intrusion on her personal space and lack of awareness that his behaviour would become distressing to the child indicates a lack of insight at that time of the effect on L of her conflicted feelings towards the Father.
L and the Father have benefited substantially from the careful assistance offered by Ms L during contact at the pre-school. I am satisfied that L’s relationship with the Father is conflicted but that there are strong indicators of positive elements to the relationship. The indications that the relationship can develop into a warm and appropriate father/daughter relationship are found in L’s expressions of love for her father, her sadness when he has departed and the happy play that they have enjoyed.
The likely effect of any changes in the child’s circumstances.
Both sets of proposals involve some change in the child’s circumstances. The Mother’s proposals are identified in paragraph 27 of these reasons. They involve a change in the identity of the contact supervisor and the contact location will be restricted to the Mother’s home, unless otherwise agreed. Until July 2000, this is where contact previously took place.
The Father’s proposals will introduce significant change to the nature of contact. His proposals are identified in paragraphs 23, 24 and
25 of these reasons. Elsewhere in these reasons, I find that the Father does not present an unacceptable risk to the child of physical, sexual or emotional abuse. I have also made findings about the nature of the environment within which the child lives. This environment is unsupportive of contact. Environment comprises much more than physical surroundings. The physical surroundings at the Mother’s home have been improved by the self- contained dwelling. Whilst the dwelling will be adequate in terms of shelter and security, limiting contact to the unit will inevitably undermine the capacity for the child to enjoy maximum benefit from contact with the Father.Children of all ages require stimulation and benefit from exposure to different experiences. This highly intelligent child is used to enjoying stimulation at preschool and now school. She participates in extra curricular activities such as swimming and dance. By bringing toys and books to the unit the Father can enhance the nature of the environment, but not to the extent necessary to ensure a continuing stimulating and supportive contact climate.
This child is used to her relationship with the Father being subject to close scrutiny by the adults with whom she lives. The note making incident in the car in July 2000 is but one example. She is used to scrutiny during contact and the parties agree hostile adult exchanges during contact. These factors combine to make the continuation of contact at the Mother’s home undesirable. This is particularly so when the advantages to the child of the changes proposed by the Father are considered.
The Father has established a network of friends, many of who have children and with whom he maintains close involvement. Dr C S and D (B) D are examples. The Father’s proposals will allow L to see the Father in his environment. Thus she will meet his friends, become familiar with where he lives with all the advantages to her that flow therefrom. It is important that a child has the opportunity to know their parent’s environment and to understand their parent within the context of that environment. This completes the child’s picture of their parent. It is advantageous to a child to see that their parent is liked by other adults and children. Too it is advantageous to the child to see the parent going about the ordinary events of life, sharing with them the pleasure that can be derived.
The quality of a child’s relationship with a parent is improved when the parent has the opportunity to guide the child by example, to set limits and explore an unfolding world with the child. The Father’s proposals will give that opportunity to L.
The practical difficulty and expense associated with contact.
In the event that supervised contact is ordered, the Mother proposes that Fox Welfare Services provide the supervisor. Friday night contact would be costed at $35.00 per hour and Saturday contact $45.00 per hour. There is a mileage reimbursement and the total fee attracts a 10% GST surcharge. Thus the minimum cost for the four hour Friday afternoon contact is $154.00 and on Saturday is $198.00.
I accept the Mother’s evidence that she is unable to meet the cost of Fox Welfare Services. Other than the child support payments, she meets L’s costs without assistance from the Father. This includes the costs of the child’s extra curricular activities. The Father’s financial circumstances are also modest. He is paying child support in the small amount identified in Exhibit “AF4”. He lives in rented accommodation and the nature of both parent’s employment is such that their income is limited. For them, even sharing the costs of Fox Welfare Services is prohibitive. The costs of contact would thus restrict the frequency with which any ordered contact could be exercised.
A less expensive proposal is that contained in the affidavit of J S. Ms S is the Director of “Angels at Night Childcare Services”. Ms S’s organisation provides qualified childcare worker supervision. The charge rate is $20.00 per hour and travelling that involves the child attracts a further $5.00 fee. Although less expensive than Fox Welfare Services, the costs are nonetheless substantial. Ms S’s evidence is that clients are able to claim a Medicare rebate. She does not identify the amount to be rebated and I am not satisfied that I can conclude that the parties would receive a significant proportion of the fees incurred by way of rebate.
Neither “Angels at Night Childcare Service” or Fox Welfare Services give evidence that they could provide the same worker for each contact visit. As the orders would be in place for at least two years, I am satisfied that it is unlikely that the same worker would supervise contact on each occasion of contact. It is more likely that a number of people will be involved. Changing the supervisor would be undesirable as each change would require the Father and child to adapt to the presence of a new person, something that would undermine the short term and long term success of contact.
The parents’ capacity to meet the child’s needs
L’s maternal grandmother, since separation, has been the adult who has primarily met L’s needs. Both the pre-school Director and Court Counsellor reported a highly intelligent child who is well socialised and apparently well cared for. The grandmother will continue to provide for L’s essential needs, supplemented by the Mother and extended family into the future.
An important aspect of meeting a child’s needs is the capacity to promote the child’s relationship with its other parent. It is important for a child’s emotional development that they be able to attach to their parents and develop and maintain a healthy parent/child relationship. Similarly, it is important that children not be exposed to adult hostility, particularly when the child is the subject matter of the hostility. The Mother and Father, to differing extents, have both engaged in behaviour that has demonstrated a lack of insight into the child’s emotional needs.
Although she denies telling L that the Father had hit her in the stomach whilst the mother pregnant with L, the Mother agreed that either she or her mother may have said something to that effect in L’s presence. It was said in the context of supervised contact during which the Mother says the Father argued with her and her mother. The Mother’s evidence was that on every occasion of contact there are arguments with the Father that the child could hear. That the arguments could involve statements of the type the Mother agrees may have been said indicates active participation in the argument by the Mother and the grandmother.
Similarly, the Mother’s attitude to Sadu has been to take a traditional form of respectful acknowledgment of the parent and make it an area of conflict for L. The Mother agreed that when living in Sri Lanka she had worshipped her mother. She said it was a respectful acknowledgment of “parents who deserve it”. The Mother’s opposition to the child performing Sadu to the Father is two-fold. Firstly, she believes that part of successful adaptation to life in Australia has meant that the family should give up some Sri Lankan traditions. Secondly, her evidence that Sadu was performed to deserving parents satisfies me that she does not regard the Father as sufficiently deserving of L’s respect. The Mother is strongly opposed to the Father kissing L on the lips and this too has become an area of conflict for L. On one occasion she says that the Father required L to kiss him on the lips and suck his nose while it was bleeding. The Mother says she was concerned about the hygiene of sucking his nose, particularly when it was fluey. I do not accept that the Father behaved as the mother said (qua) “sucking his nose”. It was an exaggerated account given to reinforce the Mother’s opposition to the Father’s application.
Just as the Mother, so too has the Father chosen to maintain conflict for L when he could have relented. Asking L to sit on his lap during the counselling session is one example. Engaging in arguments with the Mother and grandmother during contact is another. Asking L to perform Sadu at the pre-school yet another. These are all examples of practices that the Father knew the mother opposed and more importantly, knew that she discouraged L from participating in. L’s confusion and conflict was apparent and nonetheless he has persisted. This has happened I am satisfied, because the Father does not have great insight into the effect on L of being the focus of continuing parental disputation. The effect of his evidence is that he perceives that he is right, that he has done nothing wrong and need not accordingly modify his dealings with the child. In these instances he has placed his own needs ahead of L’s and I am satisfied that he too has difficulty meeting the child’s emotional needs.
Ms L reported: “Both parties are very negative towards each other. My staff and myself have been trying to remove ourselves from the conflict as our main concern is for the welfare of L. If this animosity continues, L will find it difficult to cope with and may become very distressed and confused.” Ms L recommended that the parties participate in counselling, a recommendation with which I agree. The Father’s capacity to meet the child’s emotional needs will be enhanced by the assistance offered by Dr C S, a most impressive witness. The orders I make will minimise the contact between the parties and will reduce the opportunity for L to be exposed to parental conflict.
The Father’s flatmate, S V has known the Father about 10 years. I accept his evidence that the Father is a good housekeeper and that he is able to cook, clean and attend to his share of the maintenance of the property. I am satisfied that the Father is able to meet the child's physical needs during any periods of contact.
The children’s maturity, sex and background
At the time of the hearing L was 4 years and 10 months old. The Court Counsellor described her as a “lively, attractive and self-confident child, somewhat precocious and mature for her age.” L’s primary language is Sri Lankan and English is her second language. Her English language skills are somewhat delayed although adequate for ordinary communication. This description is supported by Ms L and I accept the evidence.
Her age appropriate maturity does not extend to all issues. The pressure this child has endured concerning contact has sensitised her to the Father and matters related to him. This explains her inconsistency and apparent confusion demonstrated at different times. Thus while I am satisfies that she is at least displaying age appropriate maturity on matters relating to her social and educational development, I find that in relation to contact with the Father she is somewhat immature.
Both parties are Sri Lankan. Australia is their adopted country. They have approached the transition to this new country differently. The Mother has abandoned some Sri Lankan traditions, while the Father maintains them. Sadu is a good example of the different paths they have taken. The Father maintains adherence to Sadu while the Mother does not. He has attempted to introduce L to parent/child Sadu. The Sadu is performed by joining hands as if in prayer, lifting the hands to the forehead and bowing. The depth of the bow relates to the importance of the person to whom it is performed. Parents are very important and the bow is accordingly deep. The Mother does not practice Sadu and she and her mother object to L “worshipping” the Father. The translation by Court Counsellor Seres of Sadu to “worship”, even if that is the word used by the Mother suggests a misunderstanding of the practice. It is not a form of idolatry. Dr C S described it’s extensive use in traditional families and at the Sri Lankan temple. It has no inappropriate connotations and the Father’s encouragement of it would entirely appropriate but for the Mother’s opposition.
The Mother believes that in adapting to Australian society, the child’s level of acceptance will be enhanced if some of the traditions, including Sadu are abandoned. Thus L will not be “embarrassed”. L was discomforted at the preschool when the Father tried to make her perform Sadu. Her discomfort was caused because she was doing something the Mother has prohibited, not because the Sadu is embarrassing per se.
L is fortunate that she has the chance to be enriched by two cultures. Maintaining he connection to her Sri Lankan culture is important. Both parents will do this. The Mother has maintained the language and has exposed her to literature and cultural activities. L is taken to a Thai Buddist temple, rather than a Sri Lankan one. Geographically this is convenient. During contact the Father will take L to a Sri Lankan temple, where inter alia, L will see other children and families perform Sadu. This is appropriate. I am satisfied that contact with the Father will enrich L culturally and will compliment the guidance offered by the Mother.
The parties need to try and agree on how to manage Sadu with L. Continuing to ignore the other parent’s view will be to L’s detriment. A sensible strategy, if they don’t otherwise agree, will be for L to participate in Sadu at temple and family activities where other children also carry it out.
Family violence and protection of the child.
By the beginning of 2000, L was fully toilet trained. She was also able to sleep the night without bed-wetting. During 2000, and prior to June 2000, L experienced a number of bouts of bed-wetting. It is the Mother’s case that there is a nexus between L’s resumption of bed-wetting and dysfunctional aspects in her relationship with the Father. The Mother and grandmother each gave evidence about L's bed-wetting. The primary evidence is that of the maternal grandmother and the Mother relies considerably on the maternal grandmother to recount these events. Just when L started bed-wetting was the subject of confused evidence from the maternal grandmother. Doing the best I can with the evidence she gave, L wet her bed once or twice in January and February 2000 and was then dry until June/July. During the June/July period she wet her bed 3 or 4 times. She continued to bed wet during August. By the time the hearing commenced L was again dry and her bed-wetting problem had resolved.
Doctor’s U. and S B are the mother’s family’s treating general practitioners. They have treated L since June 1997 and Dr S B has seen L approximately 22 times since that time. L has recurrent upper respiratory tract infections and many of the early consultations have concerned recurrent bouts of influenza.
On 3 June 2000, M O, maintenance contractor, attended at the maternal grandmother’s home. He had been engaged by her to build bedroom cupboards. He drew exhibit AF3. Although the Father alleged that Mr O was a family friend and that he had seen him at the home
10-15 times, I am satisfied that Mr O is not closely associated with the Mother and maternal grandmother. Mr O was specific as to the number of attendances at the home, and I accept his evidence that 3 June 2000 was the first occasion upon which he met the Father. He confidently recalls that he was at the home working on the verandah. At 9.00 am. the Father arrived. Mr O enquired of Mrs C M who the Father was. She told him. He was focused on building his melamine shelves, which he was working on, on the front verandah. The verandah is approximately 2½ metres by 2½ metres. He observed that L was initially reluctant to be with her father and that shortly thereafter the Father and child went back to the Father’s car. L was dressed in a short skirt. About
10 minutes into contact, the Father lifted L onto the brick parapet that ran along the front of the verandah. Mr O did not see how L got up onto the parapet. He saw the Father hold L on the parapet. He was concerned that when holding her on the parapet, the Father placed his hands beneath the child’s skirt. His hands were cupped around her bottom. Mr O was there for about 2 minutes. He saw that the Father’s hands were not moving.Later on, during the visit, he returned to the verandah and saw L sitting on the Father’s lap. She was facing him and had her legs wrapped around his lower body. The Father was rocking backwards and forwards on the chair in a 10 – 15 degree movement. L then climbed down from her father’s lap and went inside. When the Father stood up, Mr O saw a bulge in the Father’s groin and believes that the Father had an erection. Mr O had been discomfited by the manner in which the Father had been nursing L and did not regard the manner in which she was sitting on his lap as a “father and daughter position”. He agreed with Counsel for the Father’s suggestion that it was possible the Father had something in his pocket, however, he was adamant, nonetheless, that the Father did have an erection.
Mr O went into the house and spoke to Mrs C M. After describing his observations of the Father holding L on the parapet, he told the grandmother that “I saw the young man holding your grand-daughter on his lap, sitting on the chair. He was rocking back and forth and I saw he had an erection.” The grandmother said: “What do you mean?” Mr O said: “He had an erection.” It was apparent that Mrs M was not understanding what Mr O was saying and so he held up his finger and said words to the effect: “He had an erection.” Mrs M says she misunderstood what it was that Mr O was saying. She says she understood Mr O to be saying that the Father had inserted his finger into L’s vagina. This was the essence of what Mrs M told the Mother.
The Father denies that he has ever had an erection when nursing L. He recalls being at the home that day but does not recall the specifics of the visit. This is understandable given the passage of time and the number of contact visits that have taken place there. He recalls nursing L on many occasions and agrees that she often sat on his lap.
Mr O was agitated when giving his evidence. He was flushed in the face and with deliberation said: “I think I would have hit him.” Although Mr O believes that the bulge he saw was caused by an erection, I am not satisfied to the requisite standard that this is so. Mr O looked at the Father’s groin when he stood up. He did not stare or watch the Father, nor did he speak to him. Mr O was already uncomfortable about the way in which the Father had cupped his hands when holding L on the parapet. He did not like the manner in which L was dressed and considered that her skirt was too short. Mr O’s discomfort, the public circumstance of the Father’s contact with the child, the fleeting nature of Mr O’s observation of the Father’s groin when he stood up combined with the Father’s clear denial that he had an erection satisfy me that the Father did not have an erection.
Mrs M and the Mother gave evidence to the effect that they believed until reading Mr O’s affidavit, filed 9 October 2000, that Mr O alleged he had seen the Father insert his finger into L’s vagina. Mrs C M, on
28 August 2000, described the incident to the Court Counsellor thus: “She also stated that a carpenter who had been working at her home, had allegedly witnessed Mr D put his hand on L’s groin area and refused to allow L to break free from him at that time.” She did not allege that the carpenter had inserted his finger in the child’s vagina. Mr O did not say that the Father had restrained L. The later is an example of exaggeration by the grandmother in circumstances where I am satisfied she understood that reliable accounting was important.Nor indeed, when she and the Mother swore their affidavits in support of the interim proceedings did they make any mention of the M O incident. This omission, it is alleged occurred, because the affidavits were prepared in a rush. I do not accept this explanation. The issue is an important one and was equally significant during the earlier proceedings. That the allegation was subsequently included in their affidavits filed in support of the final proceedings undermines the submission that the disclosure was delayed because of cultural sensitivity. They had the same solicitor and the period between the two hearings was only a couple of months.
On 4 June 2000 L again attended Dr B’s wife concerning the flu. On 9 June 2000 the consultation related particularly to L’s bed-wetting and recent nightmares. The fact that L had been previously dry and was now bed-wetting concerned Dr B. He considered that she may be suffering a urinary tract infection, such as cystitis and tested her urine for evidence of organic causation of her bed-wetting. The results of the urine testing were negative, indicating that there was no apparent organic cause for L’s bed-wetting. He gave the maternal grandmother the results of the urine tests. Nonetheless, the maternal grandmother told the Mother that one test had been positive.
Having excluded an apparent organic reason for L’s bed-wetting, Dr B conferred again with the grandmother to try and establish whether there was a non-organic reason that might explain the bed-wetting and child’s nightmares. Her took a history from the maternal grandmother, which history he relied on in coming to his diagnosis. The following day Dr B provided a referral to Doctor W. The grandmother did not tell Dr B about the incident with M O at this time. Dr B was advised about the bed-wetting, child’s disturbed sleep, her tantrums, the Father kissing the child on her lips and that she had been required to sit on his lap whilst he was wearing shorts and L dressed in a short skirt. He was advised that the Father had been trying to intimidate L and that he had required L to change her dress at pre-school. Dr B had never met the Father but had a “suspicion about him”.
Dr B did not explain to the grandmother, nor the Mother, what could be expected during the consultation with Doctor W. Doctor W is a Consultant Paediatrician. The grandmother had no expectation that L would be subjected to an intimate physical examination by the paediatrician. She thought that there may be another urine examination and I infer that Dr W would take a further history from the maternal grandmother and talk to her and L. Thus neither the Mother nor maternal grandmother prepared L for the examination that Dr W attempted to perform.
Dr W saw L on 25 August 2000. Dr W reported: “L was reluctant to be examined and a limited examination only was performed. In particular, she would not allow me to remove any clothes or examine her abdomen or chest.” He recommended that there should be a physical examination, including a genital examination, but decided that the examination should not proceed further that day. He recommended that it might be preferable for a female to examine the child. The Court Counsellor spoke to Dr W. She reports that Dr W was concerned about L’s response to his attempts to examine her and Court Counsellor Seres was similarly concerned about L’s reaction to Dr W. However, once made aware that L was not prepared for the medical examination and that she had neither previously met Dr W nor undergone an examination of the type he proposed, the Court Counsellor considered that L’s refusal to co-operate with the examination was understandable. I agree. Both Dr B and Dr W failed in their obligation to this child to prepare her for the examination. Her reaction ought to have been anticipated. It is the type of reaction I would anticipate absent any prior sexual contact. I do not accept that it contributes positively to the submission that the child is subject to an unacceptable risk of harm in the Father’s care.
Dr W understood that neither the neither the Department of Community Services nor Family Court had been previously involved nor were aware of the allegations. This was not correct. The maternal grandmother, on 6 June 2000 had made contact with the Department of Community Services. She was advised of the procedure for child at risk intake notifications and was advised to speak to an intake officer. She discussed this advice with her daughter. The maternal grandmother then made contact with the Department of Community Services a second time. Again she was advised to proceed through the intake officer. She was told how to make the notification and to attend the local department office. Neither the Mother nor the maternal grandmother proceeded further with the notification.
The Mother said she was unable to take time from work and the maternal grandmother, although working in her own time from home did not do so. The maternal grandmother says she was embarrassed and was concerned that if she notified the Department of Community Services she may lose L. Apparently members of her local community provided this information to her. This evidence has particular significance. It indicates that the history given by the maternal grandmother to Dr W was inaccurate in a material respect. She did not tell the Court Counsellor that she had already been in contact with DOCS and left her under the illusion that the first disclosure of the matter was to Dr W.
I do not accept that the maternal grandmother believed proceeding with a DOCS investigation of allegations of child abuse by the Father placed her care of L at risk. Nor do I accept that the Mother could not take time to attend a DOCS officer. It is more likely, in my view, that the Mother and maternal grandmother did not proceed with a formal DOCS investigation because they did not believe that the Father had assaulted the child as they say they believe Mr O alleged. This is consistent with the manner with which they have otherwise dealt with this issue. In reaching this finding I have carefully considered Dr B’s evidence of the grandmother’s distress and his opinion that her cultural background made discussing the issue most difficult. I accept that for any person the issue is a sensitive one. I am not satisfied that the delay and inconsistencies are adequately explained by either cultural or personal sensitivity.
Behaviour that has caused the Mother and grandmother concern, has been the Father encouraging L to sit on his lap. She has done this since she was small and still wraps her legs around his waist when she sits on him. The grandmother had placed two chairs on the verandah, one child sized for L. She had told the Father that she did not want L sitting on his lap and wanted her to use the chair. In spite of this he has continued and he asked L to sit down on his lap during the observation session. L refused. I have already made findings about the Father’s subsequent invasion of L’s personal space. I do not accept that this behaviour is indicative of a possible unacceptable risk to the child. It is however indicative of a lack of sensitivity and insight by the Father. It lacks sensitivity to the Mother’s discomfort and lacks insight into the dilemma L faces dealing with him. It is the Father’s case that the Mother and her family actively undermine his relationship. He is aware, or ought to be aware, that L is discouraged from sitting on his lap. By forcing the issue with L he places her in conflict with the Mother and her carers. L is now 5 years old and she is old to learn to be hugged without entwining the Father with her legs. This is more demure behaviour and is culturally and age appropriate.
The Mother alleged that the Father was violent to her and to the child. The violence commenced prior to the marriage and occurred “1 to
2 times a week” thereafter. These assaults were witnessed on occasion by her mother, brother and sister. She says that “on more than one occasion he hit me resulting in bruising and my lips being cut and bleeding”. L it is alleged has seen the Father hit the Mother at least 20 times. L would scream “when H struck me” behaviour she says started when L was about 2½ years old. In evidence, the Mother conceded that there had been no violence between the parties subsequent to the December 1996 New Year’s Eve altercation. L was 1 year old at this time. When pressed as to the obvious inconsistency during cross-examination her evidence became that raised voices caused L to scream.
In her affidavit she said “by 1997 H and I had separated but he continued to hit me.” She also said “After separation H’s violence towards my family and I, both verbally and physically, continued ….”. Thus she obtained an Apprehended Violence Order on the
17 February 1997. The post-separation violence, identified as both physical and verbal violence, is part of the rationale for the Mother’s approach to the police for their assistance.
In oral evidence the Mother said the last occasion of physical violence occurred on New Years Eve 1996. The assaults thereafter were verbal. This conflicts with her affidavit evidence and is another example of exaggeration in the Mothers case. The Father concedes that he has been violent to the Mother, which violence pre-dated separation. Mostly he says in self defence, an allegation denied by the Mother. The Father’s allegations lacked reasonable particularity and I am not satisfied that he was assaulted by the Mother.
I am not satisfied that the Mother’s evidence as to post-separation violence is credible. There are fundamental inconsistencies between her oral evidence and affidavit evidence. This casts considerable doubt on the veracity of her evidence pre separation. Because the Father concedes he has been violent I find that he did assault the Mother during the marriage and on 31 December 1996. The unsatisfactory nature of the grandmother’s evidence diminishes the value of her corroboration. She alleged, for example, that on 7 June 2000 the Father banged on her front door shouting swear words to her. The Father denied this. By chance the event was witnessed by B, a friend of the Father’s. The account given by B supports the Father’s denials. B gave careful testimony, was clear and gave consistent observations. I prefer his evidence to the grandmothers. As is the case with Mother and grandmother I consider that it is probable the brother and sisters corroboration is exaggerated.
The Mother alleges that the Father is also violent to L. He denies this. In her affidavit she said “On or about 31 July 1999 and 27 November 1999 when H was exercising contact with L on the verandah of the home I observed H hit L with his hand.” Her oral testimony expanded the description. At its highest the Father slapped the child on the shoulder. The child was upset by the incident.
The Mother says there has been no hitting of L by the Father since November 1999. He has not been physically violent to the Mother since December 1996. The nature of the violence alleged by the Mother qua L is within the range of acceptable parental discipline. There are more appropriate ways of guiding a child, such as persuasion and encouragement. Dr C S will be able to help teach the Father appropriate disciplining strategies as will the parenting course. I have taken into account the terms of the current AVO and the history of spousal violence. The gap of 4 years since the last incident is significant. I am satisfied that the Father is unlikely to behave in a violent manner in the future to the Mother. The orders I make will not place them in direct contact, diminishing the risk further. The contact ordered will give the Father the opportunity to demonstrate that he can be a good role model and the child’s perception of him will be accordingly enhanced. Finally I have the evidence of excessive alcohol consumption by the Father. This relied on rumour to give it any currency. The Father and his witnesses denied excessive alcohol abuse and indeed the evidence supports a finding that the father is a man of sober habits and sobriety. I am satisfied that he does not present a risk to the child as a consequence of alcohol affected behaviour.
The attitude to the child and to the responsibilities of parenting
Both parties clearly love their daughter and wish to be responsible parents.
The Mother has delegated much of her responsibilities for parenting to her mother. Their parenting styles and attitudes are compatible. Since separation the Mother has been almost exclusively responsible for L’s financial needs and together with her mother has met L’s physical and emotional needs. She has created opportunities for L to adapt to Australian society and develop socialisation skills that might otherwise be denied an only child. This includes attendance at preschool, swimming and ballet. The Mother is ambitious for L both socially and educationally. Together with her mother, she has provided the child with excellent care. Her parenting style, supported by her mother’s approach, has been somewhat over protective. This has been particularly in relation to the child’s contact with the Father. Whilst during an initial period following separation, supervised contact may well have been appropriate, the necessity for it has long passed. The Mother’s opposition to unsupervised contact and the requirement that contact take place at her home has undermined the development of the child’s relationship with the Father and in this regard reflects poorly on her responsibility as a parent. As a parent, it is her responsibility to promote this relationship. This may bring her into conflict with her Mother and members of her family. She will need to develop an understanding in members in her family that she is the person responsible for L and that it is her obligation to comply with the Orders that I will make and to promote L’s relationship with the Father.
The Father has demonstrated a responsible attitude to parenting and a commitment to L which is commendable. He has persevered with contact exercised under very difficult circumstances for he and the child. He has lacked insight into the effect on L of encouraging her participation in behaviour that he knows will place her in conflict with the Mother. He has paid very little by way of child support to the Mother and until recently payments which have been made have been spasmodic. Whilst he has bought L gifts, these cannot be in substitution for his obligation as a parent to contribute to the child’s expenses. I am satisfied that he keenly desires to be involved in the child’s life and to be a responsible parent. I am satisfied that he has the capacity to do so.
Achieving finality
The Orders proposed by the Mother will address contact until 2003, at which time the parties would attend counselling. The Mother was unable to indicate whether she intended that counselling to lead to unsupervised contact. When asked directly, she was unable to give a year when she was confident that she would agree to unsupervised contact. She is, I am satisfied, unlikely to agree to unsupervised contact. Considering her evidence as a whole, I am satisfied that she is, and likely to so remain, implacably opposed to overnight and/or unsupervised contact. The Father keenly desires both and it is unlikely that with counselling these parties would agree about the nature and extent of contact in the future. The Father conceded supervised contact in the past. However, says he did so in circumstances where he understood from the maternal grandmother that more extensive contact would be available than contained in the Orders.
I take into account that the parties have reached agreement on occasion in the past, coming nonetheless to the view that it is unlikely that they will do so in the future on issues of substance.
Thus, the Mother’s proposals are likely to involve further litigation, something that is contrary to the child’s and indeed their interests. Further litigation will heighten the tension between the parties and will again embroil the child in their attempts to persuade her to take on their stance. This has the potential to be emotionally abusive of the child.
I am satisfied that it is in the child’s interest, and indeed the parties interest, that finality is desirable. The court has had sufficient evidence to enable Orders to be made on a final basis that address this child’s short term and long term interests and should do so .
Conclusion
L is highly sensitised to the parental disputation and has been intimately involved by her parents and maternal grandmother in their dispute about contact.
I am satisfied that there existed a change of the child’s circumstances, at least by virtue of the fact that she is two and a half years older than she was when the current Orders were made. In any event, that there was a change in circumstances was not an issue in the proceedings.
I do not find that unsupervised contact of the Father will place L in a position of unacceptable risk. In reaching this finding I have considered the matters raised by the Mother individually and globally. The Father’s kissing the child on the lips, sitting on his lap and the Mr O incident are all matters I have given the closest scrutiny to. Neither individually nor when considered in combination do they satisfy me that unsupervised contact to the Father will place the child in a position of an unacceptable of risk. Ordinary behaviour has become exaggerated and given unfortunate connotations. The evidence does not support the connotations, nor the findings that Counsel for the Mother pressed on the court. Overlaying those matters with the other factors such as slapping the child, changing her at pre-school and the events at Dr W’s do not change my findings. The former demonstrate at most, inexperience and the later does not influence affirmatively the nature of the risk.
I have carefully considered the effect on the Mother of an Order for unsupervised contact. Included in my deliberations has been the cultural sensitivities of the Mother and her family. The Mother and her mother will be unhappy about such an order. During evidence, however, the Mother made it clear that she understood her obligations to comply with Orders of the court and I am satisfied that she will do so. Her unhappiness with such an outcome will not, given the evidence, undermine her capacity to parent the child.
I consider that the parents and indeed the maternal grandmother, will benefit from post Order counselling during the adjustment period from supervised to unsupervised contact. Contact will be supervised by
Dr C S for three months after the making of these Orders. The constraints on an acceptable supervisor as defined in the authorities which I have made reference in these reasons, have particular application where unacceptable risk has been found. That is not my finding in this case. The Father does not present a risk of physical harm to L.
I do not order supervision to address risk issues between the child and Father. Rather, it is ordered to firstly address the Mother’s probable anxiety during the transition phase to unsupervised contact and also to give the Father the opportunity to benefit from Dr C S’s careful guidance in ensuring that he focuses on L’s needs during contact. I am satisfied that Dr C S will intervene if there are moments that are difficult for L and that the Father will listen to and respond to her guidance. I am also satisfied that Dr C S will, in the event that there are any circumstances of risk for L, intervene and report to the Mother the behaviour that has caused her concern. L may be anxious during this transition period, which anxiety will be heightened if the Mother and grandmother continue to expose her to questioning about what occurred during contact and maintain their criticism of the Father. However, even if they continue this behaviour the Father has the capacity to demonstrate during the extended contact that I have ordered that he can establish an appropriate father and daughter relationship. Because this negative attitude to the Father may continue contact should be longer than the Mother proposes and exercised away from her influence.
Supervised contact will not meet this child’s needs in either the short term or the long term. The Father and child will not have the opportunity for stimulating and enriching activity of the type available with unsupervised contact. The climate at the Mother’s home is un-supportive of contact and contact limited to those premises, even if supervised by an independent third person, is less conducive to the development of the Father and daughter relationship than the proposals made by the Father. His proposals give the child the chance to enjoy her father in his sphere of influence. She will, meet his friends and their families. She will be able to pray at a Buddist temple with members of her own community. She will have the benefit of seeing the regard for which his friends have of the Father and to see others respond to him warmly and positively. This will enhance the opportunity she has to develop her relationship with him. She will have the benefit of seeing him in a context that is starkly different to that described to her in the Mother’s home.
The Father has not had the extensive involvement with the child that one would anticipate in the years subsequent to separation. This lack of unsupervised contact and the tensions that have surrounded the issue have impeded the Father’s capacity to intuitively understand the child’s emotional needs. Because of his conflict with the Mother and maternal grandmother, he has at times taken decisions, such as Sadu and requiring L to sit on his lap, that have placed L in conflict with her mother. He will benefit, I am satisfied, from counselling and guidance as to his capacity particularly to meet L’s emotional needs. He showed in his dealings with Ms L that he has the capacity to do so. He will need to learn to manage his relationship in L in circumstances where there maybe continuing hypersensitivity by the Mother and her mother to that contact and subtle undermining of it. Although the Counsellor made reference to the “Keeping Contact” program I am satisfied that the “Hey Dad” program at Barnardo’s targets more directly the issues the Father needs to address. He must complete the “Hey Dad” program before overnight weekend and school holiday contact starts.
I have considered all of the evidence called in these proceedings. I have not addressed every matter of dispute and have, in these reasons, focused on the matters that materially affect my reasoning. The Orders I make will promote the child’s best interests and welfare. This child and her father will develop a happy and appropriate relationship that will be in this child’s interests in both the short and long term. L will benefit from improved communication between the parties and awareness in the Mother and her mother that contact is in this child’s interest.
The Orders I make are:
(1)That all existing Contact Orders are discharged.
(2)That the Father have contact with the child L R D born 29 January 1996 as follows:
(a)Each Saturday from 10.00am to 2.00pm for a period of four weeks commencing the first Saturday after these Orders;
(b)Upon the completion of contact ordered in 2.1 each Saturday from 10.00am to 5.00pm for a period of eight weeks;
(c)Between 10.00am and 2.00pm for a period of four weeks commencing at the conclusion of contact ordered pursuant to 2.1 and 2.2 of these Orders;
(d)
Upon the completion of contact ordered at 2.1, 2.2 and
2.3 contact from 10.00am until 5.00pm each Saturday;
(e)For two hours on L’s birthday in years ending in an even number and for two hours the day following L’s birthday in years ending in an odd number;
(f)From 4.00pm to 6.00pm on the Father’s birthday;
(g)Weekend and Holiday Contact :
(i)Upon condition that the Father has attended and completed the “Hey Dad” program run by Barnardo’s, or an equivalent program, that the Father have contact:
(ii)Each alternate weekend from 10.00am Saturday to 5.00pm Sunday commencing on the October long weekend 2001.
(h)Holidays:
(i)For one week in the December/January 2001 Christmas school holidays at dates and times agreed by the parties;
(ii)For one week in each Easter and September school holidays commencing Easter 2002 at dates and times agreed by the parties;
(iii)For two weeks of the December/January 2002/2003 Christmas school holidays alternating between contact during the first half of the Christmas school holidays and occurring during the second half of the Christmas school holidays at dates and times agreed by the parties.
(3)In the event that Father’s Day does not fall on a contact weekend, contact shall take place from 9.00am Father’s Day until 6.00pm Father’s Day.
(4)In the event that Mother’s Day falls during a period when the child would otherwise be with the Father, contact shall conclude at 6.00pm on the Saturday night immediately preceding Mother’s Day.
(5)School holiday contact.
(a)Shall commence at 10.00am;
(b)Shall conclude at 6.00pm;
(c)Will be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)Pupil free days are deemed to be school holidays.
(6)One week shall mean seven complete nights, commencing at 10.00am on the first day and concluding at 6.00pm on the last day.
(7)Two weeks shall mean fourteen (14) nights commencing at 10.00am on the first day and concluding at 6.00pm on the last day.
(8)Contact Ordered pursuant to Order 2.7 of these Orders shall be suspended during school holidays.
(9)That the Father shall give the Mother no less than 42 days written notice as to the weeks during which he will exercise contact during school holidays.
(10)In the event that the parties do not agree as to dates upon which contact is to be exercised during Easter and September school holidays, the Father shall have the child for contact during the first week of holidays commencing in odd years and the second week during the second half of holidays commencing in even years. For these purposes years ending in 0 are even years.
(11)In the event that the parties do not agree as to dates upon which contact is to be exercised during Christmas school holidays, the Father shall have the child for contact starting the first week of holidays commencing in odd years and the second week during the second half of holidays commencing in even years. For these purposes years ending in 0 are even years.
(12)That the Mother shall cause the child to be delivered to the Father at McDonalds at L at the commencement of contact and the Father shall return the child to the Mother or her nominee at L McDonalds at the conclusion of contact.
(13)That contact pursuant to Orders 2.1 and 2.2 shall be supervised by Dr C S.
(14)That both parties be and are hereby restrained from speaking to L in a negative fashion about the other party or permitting any other person to speak negatively about the other party within the child’s hearing.
(15)That the Father and Mother attend confidential counselling with Unifam Centacare or Relationships Australia for post order counselling. The Mother to nominate the agency within 14 days and both parties to do all things necessary to start counselling within 7 days thereafter. In the event that there is a fee attached to the counselling, the parties are to pay one half each. AND THE COURT REQUESTS Mrs C M to participate in this counselling if requested by the agency.
(16)That all exhibits are returned at the expiration of 28 days.
(17)That the party who caused subpoenaed documents be produced return those subpoenaed material to the owner at the expiration of twenty-eight (28) days.
(18)That all outstanding applications are dismissed.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
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