Dickson and Dickson

[2018] FamCA 193

FAMILY COURT OF AUSTRALIA

DICKSON & DICKSON [2018] FamCA 193

FAMILY LAW – CHILDREN – Allegations of sexual abuse and family violence – Where allegations of sexual abuse have been made against the father – Where allegations of family violence perpetrated by the father against the mother – Orders that child live with the mother – Order that parents have equal shared parental responsibility – Orders that child spend time supervised with the father increasing to overnight time and eventually unsupervised time.

Family Law Act 1975 (Cth) ss 60B, 60CC

Napier and Hepburn (2006) 36 Fam LR 395
Johnson and Page [2007] FamCA 1235

Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017)

APPLICANT: Ms Dickson

RESPONDENT: Mr Dickson

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission NSW

FILE NUMBER: SYC 4511 of 2016

DATE DELIVERED: 23 March 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney & Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 15, 16, 17 & 18 January 2018 and 2 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Longworth

SOLICITOR FOR THE APPLICANT: Armstrong Legal

COUNSEL FOR THE RESPONDENT: Mr B Richards

SOLICITOR FOR THE RESPONDENT: Harris Freidman Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

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

Orders

1. All previous parenting orders in respect of B born … 2011 (‘the child’) are discharged.

Parental Responsibility

1. Ms Dickson (‘the mother’) and Mr Dickson (‘the father’) shall have equal shared parental responsibility for the child.

Residence

1. The child shall live with the mother.

Time with father

1. The father shall spend time with the child as follows:-

   a.for a period of three months following the date of these Orders and supervised by Ms C (‘the paternal aunt’):-

   i.commencing the first Friday following the date of these Orders, from after school or 4:00pm until 8:00pm and each Friday thereafter;

   ii.commencing the first Saturday following the date of these Orders, from 8:00am to 1:00pm and each Saturday thereafter; and

   iii.commencing the first Sunday following the date of these Orders, from 1:00pm to 5:00pm and on alternate Sundays thereafter; and

   iv.the time in Order 4(a) is to occur concurrently with the parties’ engagement in Family Therapy in accordance with Orders 16 and 17 herein.

   b.After the three months set out in Order 4(a) above, in the presence of the paternal aunt, for two alternate weekends from after school or 3:30pm on Friday to before school or 9:00am the following Monday;

   c.Thereafter in a five week cycles as follows:-

   i.in the first week, from after school or 3:30pm on Friday until before school or 9:00am Monday in the second week;

   ii.in the third week, from after school Monday or 3:30pm until before school or 9:00am Tuesday ; and

   iii.in the third week, from after school or 3:30pm on Friday until before school or 9:00am Monday in the fourth week; and

   iv.in the fifth week, from after school Monday or 3:30pm until before school or 9:00am Tuesday.

   d.Thereafter from the commencement of 2019 school Term 3:-

   i.during school term commencing week one from after school or 3:30pm on Friday until before school or 9:00am Tuesday and then from after school or 3.30pm the following Monday until before school or 9:00am the following Tuesday, thereafter  alternating in like form so as the child spends extended weekend time and Monday nights with the father on alternate weeks;

   ii.during the Term 1, 2 and 3 school holidays as follows:-

   1.for the first half of the school holidays from after school on the last day of term to 6:00pm on the middle Saturday of the holiday period;

   iii.during the Term 4 school holidays, subject to the later Orders:-

   1.in December 2019/January 2020, for the first half of the school holidays from after school on the last day of term to 6:00pm on the middle Saturday of the holiday period and each alternate year thereafter; and

   2.in December 2020/January 2021, from 6:00pm on the middle Saturday of the holiday period to three days before school Term 1 commences and each alternate year thereafter;

   iv.at such other times as agreed between the parents in writing.

2. Notwithstanding any other Order, the child shall spend time with the parents on the following special occasions as agreed and failing agreement as follows:-

   a.Mothers’ Day and Fathers’ Day

   i.if Mothers’ Day falls on a day the child is to be in the father’s care, then the father’s time for that weekend shall conclude as and from 6:00pm the preceding Saturday preceding Mother’s Day and the child shall spend time with the mother on the remainder of the Mothers’ Day weekend; and

   ii.if Fathers’ Day falls on a day when the child is to be in the mother’s care, then the child shall spend time with the father on the Fathers’ Day weekend from 6:00pm on the Saturday preceding Father’s Day until before school or 9:00am the following Monday.

   b.Christmas

   i.in 2018 and each alternate year thereafter:-

   1.the father shall spend time with the child from 2:00pm Christmas Eve until 2:00pm Christmas Day; and

   2.the mother shall spend time with the child from 2:00pm Christmas Day until 2:00pm Boxing Day.

   ii.in 2019 and each alternate year thereafter:-

   1.the mother shall spend time with the child from 2:00pm Christmas Eve until 2:00pm Christmas Day; and

   2.the father shall spend time with the child from 2:00pm Christmas Day to 2:00 pm Boxing Day.

Changeover

1. To facilitate Orders 4 to 5, unless otherwise stated, the parents shall collect and return the child from and to school (if a school day) otherwise the parents shall collect and return the child at Woolworths Suburb D or as otherwise agreed in writing (which may be via email or text message) between the parties.

Communication

1. Whilst the child is in the care of the mother:-

   a.the father shall communicate with the child by telephone each Wednesday and Saturday between the hours of 6:30pm and 7:00pm;

   b.to facilitate the telephone communication between the father and the child:-

   i.the father shall initiate the phone call to the mother’s mobile telephone number and shall ensure that the phone call is made at the nominated time from an area with mobile phone reception; and

   ii.the mother shall ensure the child has privacy during the phone call.

   c.the child is at liberty to communicate with the father at other times.

2. Whilst the child in the care of the father:-

   a.the mother shall communicate with the child each Monday and Saturday by telephone between the hours of 6:30pm and 7:00pm;

   b.to facilitate the telephone communication between the mother and the child: -

   i.the mother shall initiate the phone call to the father’s mobile telephone number and shall ensure that the phone call is made at the nominated time from an area with mobile phone reception; and

   ii.the father shall ensure the child has privacy during the phone call.

   c.the child is at liberty to communicate with the mother at other times.

Other Orders

1. The parties shall use email or text message to exchange information about the child’s education, health and extra-curricular activities.

2. Each parent is at liberty to attend all events involving the child including:-

   a.sporting fixtures;

   b.extra-curricular activities that allow for parental attendance; and

   c.school functions and events that allow for parental attendance including, but not limited to concerts, school assemblies, sports days, parent and teacher interviews (subject to the convenience of the child’s teachers), canteen duties and social functions.

3. In the event that the child suffers a serious medical condition or requires urgent medical attention whilst in the care of either of her parents, that parent will notify the other as soon as practicable.

4. These Orders constitute authority for the mother and father to each receive copies of school reports, newsletters, notices and school photograph order forms. In the event that the child’s school requires written authority by a parent, the parents shall do all acts and things within seven (7) days to facilitate this Order. 

5. These Orders constitute authority for the mother and father to each liaise with the child’s treating medical practitioners and obtain information about any treatment of the child and any other medical issues.

6. That each of the parties be and are hereby restrained from:-

   a.denigrating the other party or any members of their family or household to or within the presence or hearing of the child and they shall use their best endeavours to ensure that no other person does so;

   b.discussing these proceedings with the child or within the child’s hearing or presence;

   c.showing the child any document pertaining to these proceedings; and

   d.recording on any electronic or other device conversations with the child in relation to the allegations made in these proceedings.

7. The mother and father shall each keep the other informed of their current residential address, telephone numbers and any e-mail address by:-

   a.providing each other with no less than twenty eight (28) days’ written notice of any intention to change their residential address; and

   b.providing each other with notice of any change in telephone numbers and/or e-mail address within 48 hours of any change.

Family Therapy

1. Pursuant to the provisions of s 13C(1)(c) of the Family Law Act 1975 (Cth) each parent shall participate in Family Therapy with a therapist nominated by the Independent Children’s Lawyer and agreed by the parties.

2. The parties shall facilitate the child’s attendance at Family Therapy as reasonably deemed appropriate by the family therapist and they shall attend personally if so directed.

3. For the purposes of Orders 16 and 17:-

   a.within seven (7) days of the Independent Children’s Lawyer nominating a family therapist, the mother and the father are to contact the family therapist to arrange an appointment with that service;

   b.each parent shall notify the other parent and the Independent Children’s Lawyer by email of the date of their scheduled appointment within 48 hours of making the appointment;

   c.each parent is to attend the initial appointment with the family therapist and any subsequent appointments that may be scheduled by the therapist;

   d.each of the parents shall facilitate the child attending upon the family therapist, if directed to do so, including but not limited to encouraging the child to attend the therapy at such times and at such places as the therapist may direct for the purposes of individual and/or family therapy;

   e.each parent will do all things necessary to comply with the reasonable recommendations of the family therapist;

   f.each of the parents shall follow the reasonable recommendations or directions of the family therapist as to the continued attendance for Family Therapy and/or to any parenting program or other program;

   g.Leave is granted to the Independent Children’s Lawyer to provide the family therapist with a copy of the Family Report released on 12 May 2017 and a sealed copy of these Orders;

   h.the mother shall sign all documents and do all things to authorise the therapist to communicate with the mother’s psychologist, within seven (7) days of any request to do so by the family therapist;

   i.in relation to the cost of the Family Therapy:-

   i.the parties are to pay the costs of their own attendance upon the family therapist;

   ii.the parties are to share the cost of the child’s attendance upon the family therapist (if required); and

   iii.such costs are to be paid directly to the family therapist upon receipt of any invoice issued.

   j.Therapy with the family shall  focus upon the following:-

   i.improving co-parenting and communication between the parents;

   ii.assisting the child with emotional regulation and  dealing with challenging family circumstances;

   iii.assisting the parents in responding to the child’s emotional needs; and

   iv.addressing the mother’s anxiety and beliefs in relation to the allegations which she made in these proceedings.

4. The mother shall within seven (7) days of the date of these Orders and via her solicitor:-

   a.provide her mental health practitioner with a copy of the Family Report released on 12 May 2017 and a sealed copy of these Orders; and

   b.provide written confirmation to the Independent Children’s Lawyer within twenty four (24) hours of compliance with this particular Order.

Overseas travel

1. The child is permitted to travel outside the Commonwealth of Australia with the mother for a period of up to four (4) weeks per year (including travel to South America) provided that:-

   a.the mother gives the father twelve (12) weeks’ notice of any such trip and seven (7) days prior to such travel she shall provide to the father an itinerary confirming departure and return dates, countries or country in which the child will be travelling and contact details during travel;

   b.if such travel takes place over a Christmas/New Year period, then the father’s time with the child is suspended over such of that period during which the child is travelling to enable such full four (4) week trip and the mother shall provide make up time the following Christmas/New Year period; and

   c.consequently, the mother may not take the child overseas for four (4) weeks over consecutive Christmas/New Year periods.   

2. The child is permitted to travel outside the Commonwealth of Australia with the father provided that:-

   a.the father shall give the mother eight (8) weeks’ notice of any such travel and seven (7) days prior to such travel he shall provide the mother with an itinerary confirming departure and return dates, countries or country in which the child will be travelling and the contact details during travel; and

   b.the mother shall have the first opportunity to travel overseas with the child pursuant to the preceding order. 

3. The child, B (born … 2011) shall forthwith be removed from:-

   a.any Airport Watch List; and

   b.any Child Alert Request with the Department of Foreign Affairs and Trade.  

Passports

1. Each parent shall within fourteen (14) days of request sign all documents and papers to enable the issue of a passport for the child and, when needed, the renewal of a passport for the child:-

   a.such application/s shall include instructions that the passport is to be delivered to or collected by the mother;

   b.unless otherwise agree in writing, within seven (7) days of receipt of  the child’s passport the mother shall deliver such passport, together with a copy of this Order, to the mother’s solicitor, Armstrong Legal, or to such other solicitor as is agreed in writing between the parties; and

   c.Such legal practitioner/s shall hold the passport on behalf of both the father and mother and shall not release the passport other than in accordance with these Orders, or Orders of a Court exercising jurisdiction under the Family Law Act 1975 (Cth) or in accordance with the written directions of both parents.

2. In the event that a parent requires the child’s passport for identification, travel or similar purposes (‘the requesting parent’):-

   a.the other parent shall do all acts and things necessary to have the child’s passport released to the requesting parent; and

   b.the passport is to be returned to mother’s solicitor, Armstrong Legal, or such other Solicitor as is agreed in writing between the parties, within seven (7) days of use by one or other parent.

3. The parents shall do all acts and things and sign all documents necessary to renew the child’s passport not less than twelve (12) months before the relevant date of expiry.

Generally

1. Pursuant to s 65DA(2) and s 62B, of the Family Law Act 1975 (Cth) 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 these particulars are included in these orders.

2. BY CONSENT the mother and the father shall each pay to Legal Aid Commission of NSW the sum of $4,703 being their share of the costs of the Independent Children’s Lawyer, such payments within 3 months of the date of these Orders. 

3. All outstanding parenting issues be and are dismissed, except as to costs.

4. Any remaining costs applications as between the parents relating to the parenting proceedings to be made in accordance with the Family Law Rules 2004 (Cth).

5. At the expiry of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

NOTATION

A.The school holidays are defined to commence at the end of the last day of school term and conclude before school on the first day of the school term except in terms of the Christmas/New year holidays when the child shall be returned to the mother at 9.00am on the Saturday morning immediately before the commencement of Term 1.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickson & Dickson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY AND HOBART

FILE NUMBER: SYC 4511 of 2016

Ms Dickson

Applicant

And

Mr Dickson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. B (‘the child’) is aged six years and she is the only child of Ms Dickson (‘the mother’) and Mr Dickson (‘the father’).  Her parents are in high level conflict over the parenting arrangements for her. 

2. This arose as on 11 July 2016 when the child made a disclosure to her mother which led the mother to believe the child had been sexually abused by the father.  In that perspective, the mother reflected on other events and has concluded that the father had engaged in sexual or sexualised behaviour in respect of the child over a period of time.

3. Appropriately, the mother reported the July 2016 disclosure to State Child Protection Authorities and police, following which investigations were conducted by the organisations.  Of course, that inquiry was about whether a crime had been committed and whether the child was safe having regard to both parents.  The police concluded that there was insufficient evidence on which to base a criminal prosecution.  Given there were proceedings under the Family Law Act 1975 (Cth) (‘the Act’) and that the mother had taken protective steps, State Child Protection Authorities took no further part in the investigation or the parenting dispute.

4. It was left to the parties and this Court to examine and consider all of the relevant facts and assess the prospective risk of harm or abuse to the child.  If necessary, the Court is tasked to put in place arrangements to prevent or ameliorate such risk of harm to the child.

1. Cases such as this give rise to high emotion including anger and distress to and between the parents.  At times, the person ‘accused’ of the abuse seeks to use the Courts for some form of redemption.  At times, the accusing parent seeks validation of their views and opinions.  Families and communities are polarised.

2. While reporting in a different environment, the words in the report of The Royal Commission into Institutional Responses to Child Sexual Abuse are apposite:-[1]

   It is now apparent that across many decades, many of society’s institutions failed our children. Our child protection and criminal and civil justice systems let them down. Although the primary responsibility for the sexual abuse of a child lies with the abuser and the institution of which they were part, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society. Society’s values and mechanisms which were available to regulate and control aberrant behaviour failed.

   [1] Final Report Commonwealth (2017) - Preface and executive summary, page 3.

3. The focus of this Court and the Independent Children's Lawyer (and indeed the parents) must include listening carefully to the voice of the child and not reject complaints out of hand, as was often the case in matters reported to the Royal Commission.  At the same time the Court needs to consider any allegation in the context of the circumstances of the parental conflict to which a child or children are exposed.

4. This dispute exists in a parental and family sphere of the parties impugning the motives of the other and at times catastrophising otherwise innocuous events.

5. It is not an easy task, nor one to be treated summarily.

6. In this case, having read and heard the relevant evidence and having listened to and considered the submissions made on behalf of the parties and the Independent Children's Lawyer, I have concluded that the child is not at unacceptable risk of violence, neglect or abuse in the unsupervised care of the father.

7. Lest the father consider this some vindication, I repeat that this is not a determination of this Court.  This Court accepted that the mother was generally a witness of truth, and has a reasoned and genuine belief that the father had engaged in at least sexualised behaviour.  That this Court has concluded that the child is not at unacceptable risk, does not mean that there is not risk. Court or parent can rarely reach such absolute conclusions.

8. The parties had separated in 2015 and the arrangements for the child were that she lives primarily with the mother, but spent significant time with the father.  The mother had recently re-partnered and the father was pressing for equal time in accordance with what he believed was an informal agreement the parties had reached the previous year.

9. After the disclosure and commencement of these proceedings, the matter was put in the Magellan list of the Family Court and an Independent Children’s Lawyer was appointed.  The hearing was expedited and a family report was prepared and made available to the Court and the parties.[2]

   [2] Family Report prepared by Ms E dated 12 May 2017 (‘the Family Report’) – Exhibit E5.

The parties’ applications and the primary issue

1. The primary issue in this case was whether the child is at an unacceptable risk of harm, neglect or abuse in the unsupervised care of the father. 

2. The mother’s case was, given the disclosure by the child and her mother re-evaluating a series of other events over preceding years, that the child was and would continue to be at an unacceptable risk of sexual abuse in the unsupervised care of the father.

3. The mother’s view was that the father should spend no time with the child, or if time was to be ordered it ought to be minimal and supervised.  The mother sought sole parental responsibility and permission to take the child out of the Commonwealth of Australia for international travel, the mother having been born in South America and her family living there.[3]

   [3] Mother’s amended initiating application filed 18 October 2017.

4. The father’s case was that the child was not at unacceptable risk of harm in his unsupervised care.  His counsel sought a positive finding to that effect, given that on the evidence no positive findings were made.  The father further contended through his counsel that the mother’s beliefs were such that she herself may pose a risk to the psychological health of the child in her care.  Neither the father nor the Independent Children’s Lawyer sought a psychiatric assessment of the mother.  Further, the father sought orders that the child remain primarily in the mother’s care, and as such this contention could not reasonably be sustained.

5. The father asserted that the mother over-reacted to events and was susceptible to having false beliefs that the child had been sexually abused or is at risk of sexual abuse, and he raised a series of issues in the past which he says demonstrated this concern.

6. In his evidence the father said that he was suspicious of the mother’s motives, but seemed to accept that the mother’s beliefs in terms of the risk were genuine although misconceived.

7. The father’s counsel submitted that there ought to be orders for equal shared parental responsibility, and that the child live primarily with the mother, but spend time with him building up to significant and substantial time.  He sought orders that the parties undertake family therapy and other orders in relation to each using the other as a babysitter should they not be available to care for the child, and that the parties keep each other informed of their contact details, the health and welfare of the child, and the education of the child. 

8. He sought orders that if a party is travelling interstate with the chid that parent ought to give notice to the other party.  For interstate travel I see no reason to make such orders, and the party should be free to travel and holiday without a requirement to inform the other party.  The father sought orders that for overseas travel it should be the subject of permission by the parties and that permission should not be unreasonably withheld.  His orders provide that travel must be to States which were signatories to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.  In this case the mother was born in South America and her family live in that country.  South America is a Hague Abduction Convention State.  The father sought orders that the parties attend family therapy.  In final submissions, counsel for the father sought orders almost identical to those prosed by the Independent Children's Lawyer, but with some minor changes.  I have dealt with those in these reasons. 

9. In her final submissions, the Independent Children’s Lawyer submitted that the child was not at unacceptable risk of harm in the unsupervised care of the father,[4] but said that there should be some support, preferably through the father’s sister, as the time progressed from supervised to unsupervised and day time to overnight time.  This was essentially in accordance with the recommendations of the Family Consultant, should the Court conclude that the child was not at unacceptable risk.  In her written submissions the Independent Children's Lawyer detailed the circumstances which gave rise to the mother’s beliefs and submissions as to what the Court ought to make of them.  I have essentially accepted those submissions.  

   [4]Final submissions of the Independent Children's Lawyer – Exhibit E16. 

10. The Independent Children's Lawyer sought a series of orders, including a build up to the child having unsupervised significant and substantial time with the father.  Initially the Independent Children's Lawyer submitted that the father’s time with the child ought to be in an environment where the father’s sister was present during that time; it would not be a supervisory role.[5]  She also sought orders for family therapy.  The orders sought by the Independent Children’s Lawyer were provided to the Court.[6]  Given the findings and discussion set out in these reasons, I have essentially made those Orders.

    [5] Ibid – page 6.

    [6] Exhibit E17. 

BACKGROUND

1. The father is aged 43 and he works in a professional occupation.  He is in good health. 

2. The mother is aged 38.  She is a self-employed professional and she is in good health.

3. The mother was born in South America and she and the father commenced living together in the United States of America in about 2004.  The mother asserts that they lived together in the United Kingdom and South America before she immigrated to Australia in 2006.

4. In 2010 the parties married.

5. In 2010 the father attended upon psychologist Mr F to assist with anger management issues.

6. The parties married in 2010 in Sydney New South Wales.  The child was born in 2011.

7. In early December 2011 the maternal grandmother visited from South America.  She stayed with the parties for about two weeks and assisted with washing  clothing, cleaning the house and preparing meals.

8. In mid-2012 the mother states that she returned home from work on a Saturday and observed images of young women in juvenile lingerie and behind those images was pornography on the family’s laptop computer which was placed near the child.  There is no evidence that the child observed the material.

9. In November 2012 the mother increased her work hours to four days per week.  On Mondays the husband’s sister assisted in the care of the child.  On Wednesdays and Fridays the child attended G Child Care, and the father would care for the child on Saturday mornings.

10. In March 2013 the child ceased attending G Child Care and was cared for by a nanny.

11. In March 2013 the child attended upon a paediatrician and was diagnosed with food intolerances.

12. In June 2013 the family travelled to South America for four weeks to attend the mother’s brother’s wedding.  While in South America the child attended upon a Paediatric Allergy Specialist, who reaffirmed her diagnosis of food intolerances.

13. In July 2013 the child commenced attending H Child Care on Tuesdays and Fridays while the mother was at work.

14. In November 2013 the father’s sister ceased caring for the child on Mondays. The child began attending H Child Care three days per week.

15. On 21 February 2014 the mother received a call from H Child Care and was told that the child had blood in her nappy and very bad nappy rash.  The mother states that she did not observe the child to have nappy rash or blood when she woke her that morning and that the father had delivered the child to child care.  Following this incident the mother took the child to a General Practitioner, Dr J, who advised that the child did not have a rash, but had a small cut on the side of her vagina.  The father subsequently telephoned the child care centre and was told that the child had fallen from the monkey bars that day.  The mother reported the incident to police.  The mother took two weeks off work to care for the child following this incident.  A few weeks after this incident the father telephoned the police for an update regarding what had occurred at the child care centre.  They did not hear back from the police.

16. In March 2014 the mother reduced her working days to Mondays, Wednesdays and Saturdays.  The mother’s friend commenced caring for the child at her house on Mondays and Wednesdays while the mother was at work.

17. In April 2014 the mother commenced attending upon a social worker, Ms K, about once per fortnight to discuss the breakdown of her marriage and strategies for separation.

18. In June 2014 the parties sold their previous home in Suburb L and purchased and moved into a house in Suburb M.

19. From August 2014 to October 2014, Ms N, the mother’s friend from university, resided with the parties as an au pair.  This arrangement did not last long.

20. In December 2014 the child commenced attending child care each Wednesday at O Child Care.

21. On 21 January 2015 the parties separated on a final basis.  The mother commenced sleeping in the spare bedroom while the father continued to occupy the master bedroom.  While separated under one roof the father cared for the child on Tuesday nights, Wednesday nights and Saturday mornings.

22. In mid-February 2015 the mother asserts that following a conversation regarding the separation the father threw himself onto the kitchen floor, ripped his shirt apart, repeatedly banged his head into the kitchen wall and punched himself as he called her a ‘bitch’.  This allegation is disputed.

23. In March 2015 the child ceased attending O Child Care on Wednesdays following the child advising the mother that the child care owner, and who was the only staff member, was sleeping during the day.  The father reports that the mother told the father that the child care worker was neglecting and verbally assaulting the child.

24. In May 2015 the father placed the child’s name on a child alert request with the Department of Foreign Affairs and Trade as the mother had communicated an intention to return to South America.

25. In July/August 2015 the mother formed a relationship with Mr P. He was born in South Africa and has two children from a previous relationship aged approximately 13 and 10 years respectively.

26. On a date in July/August 2015 the mother contacted the police and made a statement following an incident where she says the father was verbally abusive and threatening towards her.  The father denies these allegations.

27. In September 2015 the mother ceased sleeping at the Suburb M property and spent the evenings at Mr P’s house.  The parties implemented a routine where the child would stay with the father from the conclusion of child care on Tuesday until 7.30 am Thursday.  The mother states that the father also spent time with the child from 8.00 am to 2.00 pm on Saturdays.  The father states that he also spent time with the child on Saturday from 7.30 am to 3.00 pm as well as each alternate Friday from after day care to Sunday at 5.00 pm.  The mother states that the father’s time increased to this arrangement only in November 2015 and that his time on Saturday was only until 2.00 pm.

28. In September 2015 the parties sold the Suburb M property and on 3 October 2015 the mother moved into a two bedroom rental apartment at Suburb M.

29. In November 2015 the child underwent a tonsillectomy and the mother was assisted in the care of the child by the maternal grandmother who was visiting from South America.

30. From that time until about 11 July 2016 the mother lived in her apartment and Mr P lived in his apartment, although they spent significant time at each other’s homes.  In July 2015 the mother and Mr P began cohabiting together in the same home.  That cohabitation ceased on 1 October 2017 when Mr P moved into one home and the mother and child moved into another home.  The relationship between the mother and Mr P ended in December 2017.  I accept that they are no longer on good terms and as such the affidavit that had been prepared by him was not filed or relied upon by the mother in these proceedings.

31. Between the time of the parties’ physical separation (in about October 2015) and 11 July 2016, the child spent significant time with the father. 

32. In early February 2016 the child began to complain to the mother that her genital area was hurting.  The mother states that she observed the child to itch her vagina at various times.  The mother states that she observed that the skin around the child’s anus and vagina was red in colour and chaffing.

33. In late March 2016 the mother observed a large amount of dried yellow discharge in the child’s underwear following the child spending time with the father.  The father states that he did not notice any discharge.  The mother subsequently consulted a doctor and was told that the discharge may be the result of an infection and that it was recommended that the child was washed in the shower rather than the bath.  The mother states that in the following months she noticed dried yellow discharge on the child’s underwear on a further four occasions, each time coinciding with time the child had spent with the father.

34. On 19 May 2016 the child commenced attending upon a Speech-Language Pathologist.

35. In June 2016 the mother reports that the child began experiencing difficulties sleeping in her own bedroom.

36. In June 2016 the father consulted a triage nurse at the Child and Youth Mental Health Services regarding the child’s restless nights. 

37. In 2016 the mother reports an incident following the child spending time with the father where when she was bathing her, the child kneeled on all fours and wiggled her bottom in the air.  The mother reports that the child stated words to the effect of “this is how daddy cleans my bottom”.[7]

    [7] At paragraph 239 of the mothers affidavit filed 18 October 2017.

38. In July 2016 the father reported that when he bathed the child on one night during the week he washed her bottom and private part while she was sitting down.

39. On 11 July 2016 the mother reported an incident where the child stated that “Daddy did wash me mum.  He washed me and he even put his finger in my [BB]”; [BB] is South American for “vagina”.[8]  On that day the mother took the child to a General Practitioner, Dr Q.  Later that day, Dr Q informed the mother that he had an obligation to report the child’s disclosure to the Police and that he had already made the report.

    [8] Ibid at paragraph 241.

40. This was at the time the mother and Mr P had commenced full time cohabitation.  I find that this change was significant in the context of the relevant events.

41. The mother commenced proceedings in the Family Court in July 2016 and the father filed a response to those proceedings in August 2016.  On 17 August 2016 interim orders were made that the child live with the mother and spend supervised time with the father, with the father’s sister being the supervisor.  The child’s time with the father was from every Friday from after day care until 8.00pm, every Saturday from 8.00am until 1.00pm and every alternate Sunday from 1.00pm to 5.00pm.

42. A Magellan Report was prepared.  In April 2017 the parties and child were interviewed by Ms E, the Family Consultant, and the Family Report was released in May 2017. 

43. In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary intention is clear.

The law regarding parenting and allegations of unacceptable risk of abuse

1. The provisions of the Act which deals with children is set out in Part VII in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

1. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

2. The terminology of the section is such that the Court is to presume that it is in the best interests of the child for their parents to have equal shared parental responsibility unless the Court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

3. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise, then:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable; and if not

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

4. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.

5. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

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

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

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

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

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

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

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

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)     to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain 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;

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

   (f)       the capacity of:

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

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

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

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

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

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

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

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

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

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

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

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

6. In M v M (1988) 166 CLR 69 the High Court considered the approach that should be taken in cases where there is an allegation of sexual abuse in a parenting dispute and posited the “unacceptable risk test”. This remains the test in parenting disputes involving allegations of risk.

7. It is clear that a court should not make a positive finding that the allegation is true unless the Court is satisfied according to the civil standard of proof, with regard to the Briginshaw factors. [9]  Similarly, the Court ought not to shy away from making findings where the evidence enables that to be done. [10]

   [9] See Briginshaw v Briginshaw (1938) 60CLR336. This is now codified by s 140 of the Evidence Act 1995 (Cth).

   [10] Amador and Amador [2009] FamCAFC 196.

8. In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, at paragraph 18 the Full Court confirmed the very high standard to which a court needs to be satisfied on the balance of probabilities that “something has actually occurred”

9. In 2006 the Honourable John Fogarty published a paper on Unacceptable Risk.[11]  In that paper he set out a summary of applicable principles:-[12]

   [11] ‘A Return to Basics’ 20 AJFL 249.

   [12] Ibid, page 11.

   a)The decisive issue is and always remains the best interests of that child;

   b)All other issues are subservient;

   c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable;

   d)Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies;

   e)The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk;

   f)The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child; and

   g)The onus of proof in reaching that conclusion is the ordinary civil standard; but

   h)the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

10. In Napier and Hepburn (2006) 36 Fam LR 395, the Full Court approved [at para 56] passages from Fogarty J’s decision in N and S (1996) FLC 92-655 including where he cited Gallen J, Cook P and Hardie Boys J in S and S [1994] NZFLR 26 at 33-34:-

    …there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction; and …

11. Fogarty J went on further to say at:-

    Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.

12. In Johnson and Page [2007] FamCA 1235 the Full Court said at paragraph 71:-

    71.We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68).  We assume point seven of that summary is directed to the requisite standard of proof.  We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).

13. I have applied these principles to the relevant facts.

EVIDENCE

The documents

1. At the commencement of the hearing I invited each of the parties to tender their case outlines, not as evidence of the facts asserted in them but simply as an indication of what they were submitting and contending with these proceedings.  This was done and I have had regard to them in the final submissions.[13]

   [13] Independent Children’s Lawyer case outline – Exhibit E1, mother’s case outline – Exhibit E2, and the father’s case outline – Exhibit E3.

2. The mother relied upon her amended initiating application and her affidavit both filed 18 October 2017.  The mother sought to adduce evidence from an interpreter about a conversation with the child in Portuguese.  However, the use of this late affidavit was not permitted.

3. The mother relied upon the Family Report of May 2017.

4. During the course of cross-examination the mother was taken to her affidavit filed 19 July 2016 in these proceedings.  I have had regard to such parts of that affidavit as were the subject of oral evidence before the Court.

5. The father relied upon his affidavit filed 17 October 2017.  During the course of the proceedings he was cross-examined in relation to this affidavit filed 16 August 2016.  I have had regard to such parts of that affidavit as was referred to in his evidence.

6. The father relied upon his amended response to initiating application filed 11 August 2017, although the orders he initially sought in these proceedings were set out in his case outline and later in his short minute of orders tendered in final submissions.[14] The underlined parts were said to be the difference between the orders he sought and those sought by the Independent Children's Lawyer.

   [14]Exhibit E18. 

7. The Independent Children's Lawyer relied upon a tender bundle prepared by her.[15]  I have had regard to such material in that tender bundle to which I have been referred together with the documents giving context to that material.

   [15] Exhibit E4.

8. The Independent Children’s Lawyer relied upon the May 2017 Family Report of Ms E, the Family Consultant.[16]

   [16] Exhibit E5.

9. During the course of the hearing a number of further documents were tendered:-

   -Exhibits E1,2 and 3  Case outlines of the Independent Children's Lawyer and the parties;

   -Exhibit E4       Independent Children's Lawyer’s tender bundle;

   -Exhibit E5       Family Report tendered by the Independent Children's Lawyer;

   -Exhibit E6       Father’s objections to material contained in the affidavits and concessions tendered by the father;

   -Exhibit E7       List of recordings taken from mother’s mobile telephone tendered by the father;

   -Exhibit E8       Relevant documents produced by the Suburb M Medical Practice tendered by the father;

   -Exhibit E9       Correspondence between Blackman Legal, Legal Aid, Harris Freedman between September 2017 and December 2017 tendered by the father;

   -Exhibit E10     The mother’s objection to affidavit material and concessions;

   -Exhibit E11     Text messages passing between the parties on 9 & 10 July 2015 tendered by the mother;

   -Exhibit E12     Text messages chain between 24 September and 30 September 2017 tendered by the mother;

   -Exhibit E13     Text messages between the parties in March 2015 tendered by the mother;

   -Exhibit E14     Text messages between the parties on 17 April 2015 tendered by the mother;

   -Exhibit E15     Documents from R Centre tendered by the father.  There are two copies of this Exhibit, one being the original; and the other a paginated copy.  The relevant pages are 29 to 32;

   -Exhibit E16     Independent Children's Lawyer’s final submissions; 

   -Exhibit E17     Independent Children's Lawyer’s short minute of proposed orders; and

   -Exhibit E18-    The father’s short minute of proposed orders. 

The mother

1. The mother’s affidavit filed 18 October 2017 was read into evidence.  In accordance with the rules a list of objections had been prepared by counsel for the father and a number of objections were the subject of agreement.[17]  Those paragraphs or parts of paragraphs were removed.  This included paragraphs 32, 33 and 34 of the mother’s affidavit.   During the course of cross-examination paragraphs 33 and 34 were read to the mother by the Independent Children’s Lawyer.  Counsel for neither party took objection to that cross-examination; as such I treat those paragraphs as being part of the material available to me.

   [17] Exhibit E6.

2. The mother gave evidence on day one of the hearing that she had made a series of recordings of the child on her mobile telephone including recordings of singing and other recordings including from 12 July 2016.

3. Those arose after the child’s visit with the Joint Investigation Response Teams (‘JIRT’), officers from NSW Police and NSW Families and Community Services.  The mother said that the recording was through her telephone and that she did not believe the child was aware that this was being recorded.  It contained leading questions and the child was very upset.

4. In later evidence in chief the mother said that she and Mr P ceased living together in October 2017 and their relationship ended on 21 December 2017.

5. She also provided evidence that her mother had never been diagnosed with any mental health disorder but that she, albeit unqualified to do so, formed the view that her mother may have had an obsessive compulsive disorder.  She said, as far as she was aware, her mother had never been diagnosed as bipolar.

6. The mother was cross-examined by counsel for the father for the whole of day two of the hearing and for over two hours on day three of the hearing.  The cross-examination technique applied by counsel for the father was unnecessarily aggressive.  On at least one occasion, I pointed this out to counsel and required him to moderate his approach.

7. Counsel for the father asked long, often complex and difficult questions of the mother.  I raised this concern with counsel which drew a confrontational response, which was that if the mother needed an interpreter then one should be provided. It was the aggression of the questioner and opaque nature of some questions which were the problem, not the witness.  

8. On my assessment of the mother’s language she was very comfortable speaking English and understanding English.  There were the occasional words with which she struggled, such as clarification as to the subtle difference between the words possible and suspicious. 

9. The main difficulty observed by me was the complex and at times convoluted nature of the questions put to her by counsel for the father during cross-examination.  I formed the view that she did not need an interpreter.

10. I had assumed that the aggressive and confrontational approach adopted by counsel for the father served some forensic purpose and I allowed it to run.  At the end there was no serious forensic purpose.  An example of this poor cross-examination, and frankly, time wasting was the aggressive questioning of the mother as to why she had not informed the father of her change of address when she moved following the end of her cohabitation with Mr P on or about 1 October 2017. 

11. Annexed to the father’s affidavit[18] was a text message exchange between the father and the mother.  On 1 October 2017 the father emailed the mother saying:-

    Please let me know your new address as this is required by the Court.

    [18] Filed 17 October 2017 - Annexure B page 34.

12. The following day the mother replied:-[19]

    I have moved to a new house abs [sic] my address is now … Let me know if you need any other information.

    [19] Ibid.

13. This was a pleasant and informative reply.  The mother had previously let the father know she was moving to Suburb S in advance of the move.

14. The thrust of the cross-examination was that there was a court order that the mother notifies the father in advance of her change of address and that she had failed to do so.  In itself, given that on his evidence the father was informed the day or so after the move of the address, it was much ado about nothing.   

15. However, what the father knew was that the mother had sent a text message to him on 24 September informing him that she was moving to Suburb S that week and that she would need to establish a new pick up and drop off venue.  The text trail shows that she informed the father on 30 September 2017 that the removalists were unpacking.  The father permitting such aggressive, irrelevant and unnecessary cross-examination of the mother in that circumstance did him no credit.

16. The mother is a qualified professional.

17. The mother gave evidence that after the disclosure on 11 July 2016 she considered other events over the preceding years and concluded and has now formed a view that the father had abused the child.  She does not accept the father’s explanation.

18. The mother gave evidence that the child has activities during the week: she swims with the father and attends language classes on Tuesday afternoon.

1. Consequently, I will be making the residence orders substantially in terms of that submitted by the Independent Children’s Lawyer.  In that regard from mid-2019 the child will be spending part of the school holidays with the father.  This is likely to start at the school holiday period at the end of Term 3.

2. It is also submitted that the child should spend time with the father and mother on special days such as Mothers’ Day, Fathers’ Day and Christmas Day.  I have made those orders.

3. There were a number of specific items with which I have dealt with in terms of the orders.  The first is the notation sought by the Independent Children’s Lawyer that the holidays are deemed to have ended on the last day before the commencement of school term.  That is entirely appropriate in terms of the mid-year holiday period.

4. However, with the commencement of school in each year it is appropriate that the child is returned on the Saturday morning so that the mother can take the normal steps in relation to readying a child for school.  This includes buying uniforms and doing all of the necessary steps for that preparation.

5. The father sought changeover to take place at Suburb D or as agreed between the parties.  No effective submission was made by the Independent Children’s Lawyer in this regard and the mother made no submissions.  Accordingly, I will direct that the changeover takes place at Suburb D or as agreed between the parties if the changeover is not otherwise arranged through the school.  Arranging the changeover primarily at school time is preferable and it lessens the opportunity for conflict between the parties.

6. Having considered the relevant submissions and in the context of the findings and the facts and the relevant factors I am proposing to make the orders as substantially proposed by the Independent Children’s Lawyer.

Telephone time

1. The Independent Children’s Lawyer submitted that there ought to be telephone time on particular days per week, while the father submitted there ought to be a different day. 

2. Given the conflict that presently exists between the parties and the difficulties which the mother will face in coming to terms with these reasons, I have adopted the more conservative approach as submitted by the Independent Children’s Lawyer as I am satisfied that that would be the better interests of the child.

Injunctions

1. I have put in place orders restraining the parties from denigrating the other party or members of the their family, discussing these proceedings and recording conversations of the child in relation to the allegations made, given the concerns expressed by the Independent Children’s Lawyer and the father as to the nature of the questioning of the child by the mother shortly after the July 2016 disclosure.

2. I have considered and made the orders sought with regard to provisions of orders to the health care professionals, attending at schools and school events, permission for each parent to have access to normally available school material such as school reports and the like, the power for both parents to liaise with treating medical practitioners and that the parties must keep each other informed as to their relevant contact details.

Interstate travel

1. The father sought an order that in the event that should either parent wished to take the child interstate during the period of time when the child is in their care, they would be permitted to do so.  He then directed that details of such interstate travel be provided.

2. The child will spend time with each of these parents and there is no reason why the parents should be required to notify the other parent of such interstate travel.

3. It is simply creating an unnecessary requirement in my view.  If the order was made it would be appropriate for either party to fly the child to Y Town, Z Town or AA Town without the consent of the party, but if the child is to go a bit further then details would have to be provided.  I see no reason why that should occur.

4. Accordingly, I will not be making that order.

Overseas travel

1. The father sought orders[43] that both parents be permitted to travel with the child outside Australia and then provided some conditions. 

   [43] Exhibit 18 Order 22.

2. In his submissions counsel for the father asserted that the mother’s country of origin was a Hague Abduction Convention State, but that it did not have a good record in terms of return of children, particularly to the United States.  There was no evidence before me to that effect.  He also said that the father would act reasonably depending on the political and social positions in South America. 

3. The mother was born in South America and her family resides in South America.  Her country of origin is a Hague Convention country and it is clear that both parties anticipate that the child will travel overseas.  The father’s approach is that the mother can travel provided he consents and his consent will not be unreasonably withheld. 

4. Given the high conflict between these parties and having regard to the significant costs that the parties have incurred in these proceedings, and having regard to the submissions of the father, I am satisfied that if I adopt that approach it is a probability that the issue of travel by the mother to South America could lead to further litigation between the parties.

5. The mother’s proposal is that she be allowed to travel with the child outside the Commonwealth of Australia for a period up to four weeks each year provided that she gives the father notice of the trip.  Given that the mother was born in South America, that her family lives in South America and that her country of origin is a Hague Convention country I see no reason why that ought not to occur.  The effect of the other time orders would be that the mother and the child would not have sufficient time to reasonably travel to and from South America.

6. Accordingly, I have made an order giving her first option to travel to South America over a four week school holiday period, with make-up time for the child with the father during the next year.  It would not be open for the mother to go each year, but it would be open for her to go each alternate year to spend time with her family in South America.  I have determined that that is in the best interests of the child.

7. To avoid further conflict, I intend to make orders enabling either party to travel outside the Commonwealth of Australia, and for the mother, given the distance for period up to four weeks per year provided there is make up time the next year, provided they give notice of that travel. 

8. There was no provision in the orders sought for the issue of a passport.  Given the high conflict between these parties I propose to make orders directing both parties to sign all documents necessary to issue a passport for the child and direct that the passport be held in the safe custody of the mother’s solicitor’s office and only released with the written consent of both parties.  It can be held at some alternate place as is agreed in writing between the parties.  This will reduce the need to come back to court for any passport or any renewal of passport.

9. I have not acceded to the request that the father requiring travel only to Hague Convention countries.  There may be travel into the Pacific Islands or Bali or parts of Asia as this child grows toward and into her teen years, and those States may or may not be Hague Convention countries.  If the parties travel east to west they are likely to transit through Asian or middle eastern countries which are not signatories to the Hague Convention.  Any concerns that a parent may have regarding travel to particular destinations as proposed in the orders can be addressed through the notice and an urgent application to a court, if necessary.

10. There is no evidence of an Airport Watch List Order, although there is evidence of a Child Alert Request, as the father deposed:-[44]

    44.In around May 2015, I said to [the mother] words to the effect of:

    Can you please wait until we move out before you start dating someone else? I cannot afford to financially support you while you are dating and working part-time.

    [The mother] replied to me words to the effect of:

    If you don’t live with me and support me, I will take [the child] back to [South America]. My parents have been encouraging me to move back to [South America] anyway.  You are being ridiculous not letting me move on.

    I placed [the child’s] name on a Child Alert Request with the Department of Foreign Affairs and Trade. I understand that this alert will lapse automatically in 12 months after the request was made.  I believe it has now lapsed.

    [44] Father’s affidavit filed 17 October 2017 paragraph 44.

11. It is not clear as to the status of the Child Alert Request in a situation where orders are going to be made at the request of both parties, in one form or another, enabling parties to travel outside Australia with the child.  As such, I will make an Order discharging any Airport Watch List Order and any Child Alert Request.

The costs of legal aid

1. The Legal Aid Commission sought payment of its fees of $4,703.  This was supported by the father[45] and not the subject of submission on behalf of the mother.  Accordingly, that order will be made.

   [45] Exhibit E18.

I certify that the preceding three hundred and five (305) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 23 March 2018.

Associate:     

Date: 23 March 2018