Darcy & Cameroon

[2008] FamCA 539

FAMILY COURT OF AUSTRALIA

DARCY & CAMEROON [2008] FamCA 539

FAMILY LAW – CHILDREN – interim orders – with whom a child lives and spends time – high level of conflict between parties – long-running proceedings – concerns of mother that child abused in father’s care, specifically the father’s physical discipline of child and his drug use – numerous notifications by mother to Families SA – concerns of father re constant breach of orders by mother – mother’s influence on child of greatest concern – consideration of previous judgments, Families SA report and Family Assessment Report – grave concerns for child’s well being – pending final resolution or further order, child to live with the father and spend supervised time with mother at children’s contact service.

FAMILY LAW – INJUNCTIONS – mother restrained from having contact with child other than as provided in order or attending child’s school – father restrained from physically disciplining child and using cannabis.

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Darcy

RESPONDENT: Mr Cameroon

INDEPENDENT CHILDREN’S LAWYER: James Richard Croft

FILE NUMBER: ADC 928 of 2007

DATE DELIVERED: 29 February 2008

PLACE DELIVERED: Adelaide

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 29 February 2008

REPRESENTATION

FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr I. Charman

SOLICITOR FOR THE RESPONDENT: Ian Charman and Associates

INDEPENDENT CHILDREN’S COUNSEL: Mr M.A. Boehm

INDEPENDENT CHILDREN’S SOLICITOR: J. Richard Croft

Orders

UPON NOTING that the father has indicated a preliminary view that he will be seeking a Certificate under Section 128 of the Evidence Act such that he may give evidence that touches upon the criminal proceedings yet to be determined by the State Courts enabling him to give such evidence without fear of his evidence on that topic being given in the criminal proceedings

IT IS ORDERED THAT:-

1. The question of the issuing to the father of a Certificate under Section 128 of the Evidence Act be adjourned for the further consideration of the Trial Judge.

2. The proceedings remain listed as the first reserve trial before the Honourable Justice Stevenson in the week commencing 25 March 2008.

3. In the event that the trial is not reached by the Honourable Justice Stevenson in the week commencing 25 March 2008 then the proceedings be listed for further directions before the Honourable Justice Strickland at 9.00 am on Friday 28 March 2008.

4. A directions hearing be conducted by the Magellan / Docket Registrar on a date and at a time to be fixed by the Court prior to the commencement of the trial and if possible, during the week of 17 March 2008.

5. On or before 4.00 pm on Wednesday 19 March 2008 the parties do file and serve any amended Applications and Responses indicating in detail the Orders sought by them and Rule 15 Affidavits of evidence of themselves and their proposed witnesses.

6. On or before 4.00 pm on Wednesday 19 March 2008 the Independent Children’s do Lawyer file and serve a list of the proposed witnesses to be called by him during the trial of these proceedings.

7. Leave is granted to the parties and the Independent Children’s Lawyer to file and serve by no later than 4.00 pm on Friday 14 March 2008 subpoenae directed to any proposed witnesses, with such subpoenae to be returnable at 10.00 am on Wednesday 26 March 2008.

8. Pursuant to Section 62G(2) of the Family Law Act 1975 as amended but as a Regulation 7 Family Consultant or otherwise Dr A do:-

   (a)    interview the child … (“the child”) born … July 1998 in order to secure the child’s current views;

   (b)    that such assessment involve interview(s) with the child only and not with either of the parties (unless it is the view of Dr A that it would be appropriate to do so given the child’s expressed views to her);

   (c)    that such interview(s) if at all possible be conducted no later than Tuesday 25 March 2008; and

   (d)    that Dr A be in a position to report orally to the Court when she otherwise gives her evidence during the trial of these proceedings.

AND IT IS FURTHER ORDERED, PENDING FINAL RESOLUTION OF THE MATTER IN THE WEEK OF 25 MARCH 2008 OR UNTIL FURTHER ORDER AT THE DIRECTIONS HEARING ON 28 MARCH 2008:-

1. All existing parenting Orders in relation to the child be suspended to the intention that any injunctions and protections for the child remain in place as previously ordered.

2. The child live with the father UPON NOTING the intimation of the father that he will personally supervise the child at all times other than during periods when she is at school.

3. The child spend time with the mother only in circumstances supervised by any of the Children’s Contact Services (“CCS”) in the State of South Australia and for such periods of time as the CCS can offer and facilitate in the short term.

4. Subject to paragraph 11 hereof, the mother is restrained and an injunction is hereby granted restraining the mother from having any contact with the child and specifically from attending upon or remaining within 1 kilometre of the child’s school.

5. The father be restrained and an injunction is hereby granted restraining the father from:-

   (a)physically disciplining the child in any way;

   (b)discussing these proceedings with the child or any aspect of the allegations that have been raised within the context of these proceedings and from permitting any other person to do so;

   (c)consuming or using cannabis in any of its forms.

6. The Independent Children’s Lawyer consult with such doctors or therapists as are appropriate in order to determine whether it is appropriate to reinstate therapy for the child.

7. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 928 of 2007

MS DARCY

Applicant

And

MR CAMEROON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court on a specially Judge managed basis as a result of a further Application filed in these proceedings signed by the mother on 10 May 2007 and presumably filed on 11 May 2007, along with her Application in a Case which does bear the filing date of 11 May 2007.  In it the mother seeks orders that the existing orders made in relation the child born in July 1998 be discharged and that she live with the mother.

2. The mother has also filed a number of more recent Applications in a Case which, in summary, again restate her position that the child should live with her and that the child spend no time with the father.  She further seeks orders that the Independent Children's Lawyer's appointment be dismissed and discharged.

3. The mother's applications to this Court over many years have been consistent.  The mother is concerned that the child is being abused in the father's care.  She particularly is concerned that the father physically disciplines the child inappropriately, as a minimum, and is further concerned that he in fact takes it to the point of it being in the nature of an assault upon the child.  She is also concerned about the fact that he grows and consumes cannabis.  He has one cannabis conviction on 17 October 2006 and there was an additional complaint and summons for 23 April 2007.  The mother alleges there is such a document.  The father indicates that he has never been served with such a document and that there are no such outstanding proceedings.  There are, though, proceedings before the criminal courts, where the father is facing a serious assault charge arising from a meeting between the parties at the Women's and Children's Hospital on 24 July 2007. 

4. Those matters need to be concluded by the criminal courts, but in my view they should not restrain this court from endeavouring to perform its duties to the child in trying to establish what is in her best interests.

5. The father's concerns are that the mother is in constant breach of orders that have been made by the court in the past and that she is responsible for enabling the child to miss many days of schooling, including some 25 days in the year 2006.  The father further alleges that he lost his permanent job as a result of his need to attend to the mother's court actions and that he has suffered numerous police raids instigated by the mother in terms of alleged cannabis use. 

6. It is his position that he has no cannabis in the household when the child is there but he acknowledges personal use of same.  He further counters by saying it was the mother who assaulted him at the Women's and Children's Hospital on 24 July 2007.  That is a matter for the criminal courts to determine, or this court if the father pursues an application for a certificate pursuant to Section 128 of the Evidence Act to enable him to give evidence in relation to it in this Court.

7. This Court has regrettably been obliged to deal with this dispute between the parties for many, many years now; the first proceedings before this Court having been instituted in 2001.  There have been two concluded trials, one before Dawe J in 2003 and a further proceeding before Le Poer Trench J which, as I understand it, resulted in orders having been made on 20 April 2006, after a number of days of trial, in accompaniment with some very lengthy and explicit reasons that he provided, to try and accommodate the child’s needs.

8. That, regrettably, has still not been the end of the matter and the mother again agitates her concerns before this Court by the Application I mentioned filed on 11 May 2007.  I have detailed the mother's concerns.  They are as to the father's alleged violence, both towards her and towards the child, and some concerns about his parenting skills.  The various reports do make criticisms of him and his parenting skills.  He is clearly reluctant to give up some of his lifestyle choices, even though he has a critical role to play in the care of the child.  The obvious ones are, from the documents I have read, attendances at the hotel with the child in tow and the personal use of cannabis.

9. In my view, on a preliminary assessment of the current issues before the Court, the matter of greatest concern to the Court is the mother's influence or possible influence upon the child.  This issue has raised its ugly head in all of the proceedings before the Court.  In the trial proceedings before Dawe J, leading to her judgment on 17 March 2004, Dawe J found that the mother had exaggerated and dramatised the father's behaviour with regard to her allegations of domestic violence and had minimised her own role in the dysfunctional relationship between them. 

10. As to the sexual abuse allegation raised by the mother, Dawe J remarked at paragraph 144 of her judgment:

    “[The child] has been exposed to her mother's obsessive involvement in preparing for the Court proceedings and discussing her allegations of sexual abuse with others.”

    Dawe J was satisfied that the evidence before her did not support any finding that the child had been sexually abused in any way by her father or subjected to any inappropriate sexual behaviour while in the care of her father.  That arises from paragraph 149.  Dawe J further found there was no unacceptable risk to the child or sexual or physical abuse in the care of the father during contact.  That is found in paragraph 176.  She then dealt with the father's alleged abuse of alcohol and marijuana and found there was no reliable evidence of any recent abuse of alcohol or marijuana.

11. All of these proceedings occurred at a time when the child was five years old; she is now nine and a half years old.  At that time Dawe J stated:

    “For many years now she has been exposed to the mother's pre-occupation with the Family Court proceedings and the allegations that she has been sexually abused.  She is aware of Court proceedings.  At [the child’s] age and in the circumstances, little weight should be given to any wishes expressed by her to her mother.”

    That is found at paragraph 154. 

1. At paragraph 160 Dawe J said this:

   “The mother admitted in her evidence that she had spent time talking to others about the allegations of sexual abuse and a considerable amount of time at the computer preparing documents for Family Court proceedings.  The mother's relationship appears to have been affected by this preoccupation.”

2. At paragraph 170 Dawe J stated that:

   “The mother has the capacity to provide for the practical and day to day needs of the child.  The mother has a limited capacity to understand, appreciate and provide for [the child’s] psychological and emotional needs.  The mother appears to be preoccupied with past experiences concerning the father and her attempt to prove and convince others that the father has sexually abused [the child].  The preoccupation of the mother has limited her capacity to provide for [the child].”

She further pointed out, at paragraph 173, that:

“The mother's behaviour in agreeing to contact and allowing contact to take place calls into question the truth of her allegations about his prior behaviour.”

1. I further note that the mother has been found to have contravened contact orders without reasonable excuse on a number of occasions.  That is a finding of Dawe J at paragraph 174.  Similar findings, as I understand it, were made by Le Poer Trench J and he certainly indicated his concern as to the mother's preoccupation with these proceedings and the mother's influence over her daughter.

2. The pattern continues.  In a detailed assessment and report to the father dated 28 June 2007 Families SA record that they undertook an investigation as a result of concerns that had been raised in relation to the child.

   “The concerns were in relation to bruising that [the child] was reported to have upon return from her father's care.  A report was made detailing photographs of such alleged bruising.  However,  no context, disclosure, time frames or the photographs themselves were provided in the notification. 

[The child] was interviewed by Families SA social workers at […] School on 14 June 2007.  An outcome of ‘abuse not confirmed’ has been reached, based on the following.  Workers found [the child] to be chatty and engaging.  She responded well to invitations to open narrative.  It was quickly apparent that for a child not yet nine years old [the child] has profound understanding of the processes of Family Law Court and Families SA. 

When speaking of her parents, [the child] stated that her father hurts her but her mother doesn't hurt her much.  When speaking of discipline, she stated that her mother thinks she is an angel, that her mother warns her, talks to her but doesn't smack her, whereas her father does smack.  Whilst [the child] stated that her father hurts her, upon further questioning she did not adequately describe any action the father might do to cause her physical pain.  [The child] could not identify the last occasion she was smacked by her father and suggested workers ask her mother.  She did not speak of any current bruising.”  (The underlining is mine).

1. On the next page of the report, and it is again a matter of concern, as they record:

   “[The child] said that her mother takes pictures of her bruises as evidence for the court.  She stated that she tells her mother when her dad hurts her, so her mother can write it down, and mother makes folders which she keeps under the bed.  [The child] said that she doesn't know what her mother writes but wants her to continue to do so in order that she can live with her mother.

   [The child] stated her father does drugs and she knows this because she smelled something and looked through a keyhole of a door but couldn't get inside the locked room to prove it.  When asked why she thought it was drugs in the locked room she replied with:  ‘Mum says he might be doing a drug thing.’ 

Whilst [the child’s] knowledge of her father's criminal activities may be of concern, it is difficult to ascertain what she has surmised herself and what she has learned from adults, particularly her mother discussing it.”

1. Further, at page 2 in the last paragraph, Families SA record this:

   “The notifier reported that the mother is now too frightened to report anything for she fears the child will return from her father's harmed.  However, there appears to be no factual basis for such a fear.”

1. I might add that the next few sentences are alarming.

   “From the year 2000 to present date, Families SA have received a total of 42 notifications of child abuse and neglect regarding [the child].  All except one are as against the father.  38 of the total notifications feature concerns from the same notifier or informant.  32 of the total number of notifications were assessed as not meeting the criteria for child protection and subsequent intervention.  Of the seven that did meet criteria for intervention, four were investigated and none substantiated.”

1. On page 3 of their report Families SA record this in the third paragraph:

   “Following interviews with [the child] and the father, Families SA are unable to substantiate concerns that [the child] may be unsafe in the care of her father.  However, concerns remain with regard to her level of knowledge of Family Law Court and Families SA processes, as well as what appears to be her sense of need to provide her mother with evidence to win in the Family Law Court.  
   Of great concern to Families SA is the pattern of repeated and possibly vexatious notifications of child abuse and neglect against the father.  Families SA are concerned about the exposure of [the child] to an increasing number of professionals and the potential for this to have a negative impact on her. 
   Similarly, Families SA are concerned that [the child]  feels a responsibility to each of her parents and the likely emotional impact caused by her clear knowledge of the acrimonious relationship that exists between the parents.  This was further evidenced when it became apparent that the mother had detailed information from the interview that Families SA conducted with [the child] that could only have been obtained through extensive questioning of [the child]. 
   The notifier reported their belief that [the child] was being kept prisoner at her father's place against her will, which was why she was not at school for three days:  Monday, Tuesday and Wednesday.  The Monday was a public holiday.  Tuesday's absence was adequately explained due to a tooth problem and Wednesday's absence was because the tooth was being treated with a procedure at the dentist.  The notion that [the child] was being kept prisoner against her will is completely unfounded.  Families SA understands that this report may be used in the Family Law Court. 
   It is not the role of Families SA to form a view as to which parent a child should reside with.  Rather, Families SA ascertain the safety of a child whilst in the care of both parents.  Nothing has been found to substantiate any concerns that [the child] is in any way being physically abused by her father.  However, Families SA are of the view that the poor relationship between the parents is most likely to be having a negative emotional impact on [the child]. [The child] spoke of imaginary friends and problems with peer relations which could possibly be indicators that she has already been impacted.  Families SA are of the view that continued conflict between the parents to which [the child] is exposed will constitute grounds for emotional abuse.

1. They conclude by saying:

   “Unless further concerns are raised for the care of [the child], you will not be contacted again regarding this matter and her file will be closed.”

1. That was a letter of report forwarded to the father, advising him as to the findings of their investigations. 

2. A very similar thread and theme emerges from the most recent report that I commissioned from Dr A, that report being dated 25 February 2008.  Dr A reports that at first instance - and this appears at paragraph 13:-

   “[The child] aged nine years presented as a nervous and voluble child who appeared to have difficulty maintaining eye contact.  Whilst this child appeared unsettled and  unable to focus on one topic initially …..”

   She recorded, however, that she appeared to be developmentally age appropriate and that she was able to articulate her views and spoke in language that was age appropriate.  However, Dr A then reports that she settled into a more comfortable frame of mind as the writer spoke with her of the child's interests.

3. When I first read the report and I came to paragraph 26 I thought that there had been a significant breakthrough and that the child was well and truly in charge of her own destiny.  Paragraph 26 records:

   “[The child] concluded by saying that ‘Just tell them to stop arguing.  Give the judge a break, and me.  I think I want a holiday.’”

1. Dr A reported what the child had said to her to each of the parents.  The father seemed accepting of those matters that had been reported.  Interestingly, the child had proposed her own solution to the problem which was that she wanted to do fortnightly arrangements; live two weeks with her father and then two weeks with her mother.

2. Within a very short time of the mother leaving the premises of the Family Court with the child Dr A was informed - and when I say "a short time" it was about one hour later - that the child and the mother had returned. The difference in the child’s presentation from an hour or so before to that moment was dramatic and incredibly alarming.  There is a fair deal of detail provided by Dr A in her report about it, but at paragraph 35 she records this - being her presentation after she had returned to the court:

   “The child was very distressed, sobbing, pulling at her hair, wringing her hands and kneading her eyes as she sobbed.  The child was visibly distraught and unable to compose herself.  [The child] then reported, through tears, as she stared down at her lap, she had made a mistake re the fortnightly request.  She then changed her views as to what she wanted to do about the arrangements between the parents.”

1. In paragraph 36 Dr A records this:

   “[The child’s] presentation was consistent with that of a child who simply, without great suffering, is unable to contend with her parents' conflict.  She gave every impression of a child who had been, without thought for her wellbeing, rendered into an unbearable loyalty conflict.”

1. Dr A’s evaluation is recorded in paragraphs 43 to 51 inclusive as follows:-

   “43.This report outlines an entrenched and troubling matter and is limited in so far as the information gathered can only be relied upon to the extent that the parties idiosyncratically represent their views, attitudes, perceptions and behaviours.  This family assessment is limited in that it cannot establish the factual credibility of any of the parties or offer recommendations that might certainly contribute towards the building of ongoing, respectful and meaningful relationships between the subject child […] and each of her parents.

   44.Both [the father] and [the mother] appear to demonstrate inability to make child focussed inferences about how [the child] might experience their ongoing inter-parental hostilities.  The nature of the relationship between these parents appears to be deliberately combative, non-compliant and obtuse.  A deficiency of parenting skills that is, a lack of empathy, compassion and reciprocity, appear to underpin a view that each of these parents may have significant difficulty, or perhaps little if any capacity, in recognizing the child’s human and legal rights to enjoy a peaceful relationship with each of her parents.

   45.This child’s experience of her parents appears to be distinguished by a high degree of ongoing parental conflict, a lack of parental empathy and reciprocity towards the child, and a significant absence of parental give-and-take negotiation.  It appears in contrast that [the child], at age nine years, suffers a significant responsibility for empathising with each of her parent’s situations.  It appears that she attempts to reciprocate what she sees as their concern and love for her; and that she is prepared to enter into give-and-take negotiations that might please each of them.

   46.This child’s demonstrated and highly concerning level of distress appears to be a direct outcome of her very unenviable experience of her parents’ behaviours and attitudes, and of her seemingly very anxious attachment to each of them.  Such responsibility for a child of nine years, coupled with her seemingly ubiquitous experience of parental conflict, appears to possibly place this child at an unacceptably high risk of emotional and psychological harm.

   47.It is possible that [the mother’s] responses to her nine year old daughter in this Court provided a picture of a parent who needs to control her environment at all costs and who is prepared to use manipulative tactics to achieve that end.  It is also possible that if [the mother’s] allegations that [the father] threatens her life and uses [the child] to be the medium through which those allegations are made have substance, that [the father] has provided an equally concerning picture of his preparedness to satisfy his own interests.

   48.This assessment raises significant concern for [the child’s] wellbeing.  The significant allegations by both parties about each other’s poor and abusive parenting of [the child], continue to mount.  The credibility of these allegations appears shrouded and submerged by years of unremitting hostility and conflict.

   49.It may be that neither of these parents has capacity to parent [the child] in a flexible, other-than-self-directed and participatory way.  It is possible that rigidity of perspective, self-interest, aggression and continuing litigation may continue to shape their parenting behaviours.  It appears possible that their respective lack of capacity to give weight to [the child’s] needs over their own appears to demonstrate a marked lack of parental competence.

   50.[The child’s] best interests appear difficult to meet in this posited yet seemingly existing scenario.  Perhaps a wider range of options, that is wider than the option of living with each or either parent might need to be considered.  The Court might perceive usefulness in seeking assessment of preparedness by [the child’s] sister [K], through Families SA or their equivalent in Victoria where [K] now or shortly will reside, to care for [the child].  It might be useful to seek assessment of other family members or alternative care options through Families SA.  Grandparents care does not appear to be a viable option given that one grandparent is apparently very ill and the paternal grandparents live overseas.

   51.There appears to be few possibilities for [the child’s] living arrangements, at this time, that might ensure her a safe pathway through a very challenging childhood, adolescence and young adulthood.  The Court may determine that different or further options might otherwise benefit [the child’s] well being.”

2. Dr A then proposes four options.  Having an understanding of the history of the matter and having grave concerns for the child’s wellbeing, I have formed the preliminary view - and I emphasise that it is preliminary, as these matters need to be determined regrettably yet again by trial - that the greatest problem in the child’s life at the moment is her mother.  The difference between the time the child left this Court building, after being a relatively composed child with a firm view as to what care arrangements ought to be in place for her and returning to the Court in a state which clearly alarmed Dr A, is of enormous concern to me and would be to anybody else who reads the report.

3. In my view the third option proposed by Dr A is the one the Court should adopt for what I emphasise is a short period of time.  It could well be that the evidence ultimately demonstrates the position to be otherwise, but I am comfortable that, at least on a preliminary basis, the child’s best interests would be served by residing with her father until the trial, if it is reached in the week of 25 March, or the further directions hearing before Strickland J on 28 March, when further matters, if available, can be considered.

4. The issue remains as to whether or not the mother ought to be spending any time with the child prior to the dates, either of the trial on 25 March or the directions hearing before Strickland J on 28 March. 

5. I make this determination having regard to section 60CA of the Act, which requires the Court, even on a preliminary basis, to have regard to the child's best interests as the paramount consideration. In doing so the Court is directed to Section 60CC of the Act and that is divided into primary considerations and additional considerations. As primary considerations the Court must consider:-

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

1. The various reports, including the latest one, make it plain that the child is being deprived of a meaningful relationship with both of her parents by the level of conflict that exists between the two of them.  The Court will ultimately need to make a finding as to whether or not that blame can essentially be sheeted home to one of the parents or whether both of them must bear responsibility for the appalling situation in which the child finds herself.

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

1. I believe the reasons that I have already indicated have covered that situation and I have had regard to all available material presently before the court.  That issue will remain the Court's concern, almost certainly, through the interim stages and at the final hearing of these proceedings.

2. I then need to have regard to the additional considerations and they include:-

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

1. It is not possible for the Court to discern accurately what the child’s views are in this matter.  However, it is my view that in the less stressed environment that she experienced prior to the return to the Court by the mother and the child on the date of interviews, more accurately represented her views at that time.  Her views at that time were that a fortnight with her father and a fortnight with her mother would be a good thing. 

2. Subsequently, her views could only be considered to be highly confused and the result of significant stress having being brought to bear upon her, almost certainly by the mother because the mother was the only one to have had any contact with her, after she left the Court premises on the first occasion.  The reason the child did express those subsequent views may be more deep-seated and it may be that she was only more comfortable about expressing the true position to her mother than she was to the family consultant, but, on a preliminary basis, that is not the view I think the Court should form from the Family Report and from the other materials to which I have referred.

(b)the nature of the relationship of the child with:

(i)each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child);

1. In my view my reasons already enumerated deal adequately with that matter on a preliminary basis.  This is one of the largest areas of concern for the Court; namely, as to the nature of the child’s relationship with each of her parents.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. That too will be a matter of grave concern to the Court and is presently a matter of grave concern. 

2. It may well be that the father plays a significant role in the ability of the child to maintain a close relationship with each of her parents, but all of the historical indicators since the year 2000, the findings from trial, the reports of Families SA of 28 June 2007 and the Family Report of 25 February 2008, certainly point the finger at the mother.  The number of contraventions of which she has been found guilty and found to have had no reasonable excuse, indicate that it is the mother's lack of willingness and her lack of ability to facilitate and encourage a close and continuing relationship between the child and her father which presents enormous emotional stress and difficulties for the child.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Clearly, the order that I propose now to make will change the child’s circumstances.  She will not be spending each alternate week with her mother, pending trial or pending further directions orders made by Strickland J on 28 March 2008.  However, it was the likely effect upon the child of leaving her in her present situation that gave rise to the greatest concern for the Court and the changes that I propose to order in my view are required and dictated by the preliminary reports and indications the Court has received from independent experts in the area.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. This sub-section is of no relevance to my determination. 

(f)the capacity of:

(i)       either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

to provide for the needs of the child, including emotional and intellectual needs;

1. This sub-section has already been dealt with by me.  It is the concern as to the mother's capacity to provide for the child’s emotional needs that gives rise to the orders I make today.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

and

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

1. These sub-sections do not require any treatment by me.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. This sub-section again raises the same sorts of issues in that it requires me to consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents.  I have said a great deal about that already and nothing new emerges for my consideration.

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

and

(k)any family violence order that applies to the child or a member of the child's family; if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

1. These sub-sections require me to consider issues of family violence.  This is a matter raised by the mother.  No finding of any court so far has supported her in relation to her concerns in that regard and the recent report of Families SA has not found any support for the mother's allegations.  However, there are serious criminal proceedings against the father, to be determined in the criminal courts, which are related to a serious alleged assault upon her by the father.  On the father's case, he alleges that on that day the mother assaulted him.  So there are clearly issues of family violence that are yet to be resolved and may mean that the Court takes a very different view of the likely outcome at the conclusion.  However, these are to be explored.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

and

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

1. These sub-sections do not raise any additional matters for my consideration. 

2. In my view Section 60CC(4) has been covered by the reasons that I have provided to date and in my view it is premature to consider matters of Section 61DA or Section 65DAA.

I certify that the preceding forty seven [47] paragraphs are a true copy of the Ex tempore reasons for Judgment of the Honourable Justice Burr

Associate: 

Date:  29 February 2008